Can We Bail California Out of Its Bail Problem? Time to Rethink and Reform California Bail.
It is good news to hear that the State government is considering changing how defendants are assigned bail in criminal cases. And, it is good news for several reasons.
Before going on, it may be useful to provide a basic understanding of how bail works. When someone is arrested, in most cases, their bail amount is determined by the bail schedule. Periodically, Judges get together and discuss how high bail should be for each type of crime. The worse the crime, the higher the bail in general. The underlying idea is that if a Defendant has to put up, say, $50,000.00 to get out of jail while their case is pending, they will be more likely to come back to court so they don’t lose the money.
At San Diego Defenders we help people understand the bail system with the basic message that money paid to a bail bondsman is gone forever. And the family could be making payment for years after a criminal case is over. Recently, the local National City and Chula Vista newspaper, the Star News featured a very informative article written about a young lady that was arrested, bailed out, convicted, paid her debt to society and suffered for years paying the bail bond fee. I thought the article, which reads in part as follows, very moving and informative.
“Watching my grandmother write checks to the bail company for me broke my heart,” she said. Her experience, one that is all too common in California, inspired her to become an advocate for reform of the state’s unjust and discriminatory money bail system. A system that often requires people who can’t afford to pay their bail to sit in jail while they wait for their cases to go through the courts. A system that has led to people losing their jobs sinking them deeper into poverty and debt, whether or not they are ultimately convicted of a crime. In fact, more than 60 percent of the people in California’s jails haven’t been convicted of any crime or are awaiting sentencing. Most are simply waiting for trial and don’t pose a risk of flight or re-arrest. California’s money bail system also disproportionately effects people of color. Bail amounts tend to be set 35 percent higher for black men and 19 percent higher for Latino men than their white counterparts.”
The first problem with our bail system is that what was just described is not how it usually works. Only a very small percentage of Defendants who bail out of jail pay the entire bail amount themselves. What happens is most contact a bail bondsman. They pay the bail bondsman a percentage of the bail amount, often ten percent, and it is the bail bondsman who promises to pay the court the full bail amount if the person does not show up for court. The person bailing out never gets the ten percent back. So, it is not their money that is on the line if they don’t go to court. Many of the opponents of changing the law say having money on the line helps ensure people come to court when they are supposed to. But, they don’t have any of their own money on the line, it has already been spent.
The next thing about our bail system is that it unfairly punishes innocent people. If an innocent person is arrested and they cannot afford to bail out, they have to sit in jail until someone figures out they don’t belong there. It can take months for a case to get to the point where the Court or the prosecutor realize a person did not commit a crime. Sometimes that doesn’t happen a the person has to rely on 12 jurors to set them free. By the way, aside from totally destroying a person’s life by keeping them in jail, it is also very expensive to taxpayers as well.
In fact, in some cases, people who are innocent eventually plead guilty just to get out of jail. They are in so long that they already have done as much or even more time in jail then would be sentenced to for the crime they are accused of committing.
Even if the person is not innocent, the bail system is unfair to poorer people who get arrested. While a middle class or rich person might be able to afford bail, most poorer people can’t. Aside from the fact that it sucks to sit in jail, it can also make it harder to assist your lawyer in defending you.
Finally, California is looking at how other states have helped to solve the problems with bail. Assembly Bill or AB 42 and Senate Bill or SB 10 as it is known, proposes to reduce the number of defendants that would have to remain in jail while awaiting their trials. The proposed Bills would give judges and law enforcement (sheriffs), and the pretrial service the ability to determine whether a defendant is likely to go to court after being arrested without spending a good deal of money on bail. So, defendants, (remember we are presumed innocent in this country) can go home and continue to work so they can support their families while the case is ongoing.
Again, the Star News wrote a great article with a lot of information.
An additional benefit, Dan Smith, Supervising Attorney at San Diego Defenders points out is “All Counties in California would benefit if defendants used the money typically spent on bail to hire a private lawyer. It takes a load off he taxpayers who foot the bill for the Public Defenders office. Also, defendant’s families are generally better informed of what is going on a criminal case filed against their loved ones because the private lawyer has the time to keep them and the defendant more informed. And it is a no brainer that counties would save money if they did not have to hire as many public defenders at the expense of the taxpayer!”
We acknowledge that we should not simply get rid of bail. In some cases it can be very useful and important. But, it does need to be changed. The reality is that if a defendant is irresponsible and or criminal enough that they are going to fail to appear at court when they are supposed to, having them bail out is not going to change that very often. So, the people who are responsible and not so criminal have to pay for it. The same ones who don’t need bail to begin with.
It is time to bail out California from its bail problem! Call San Diego Defenders (619) 258-8888
By Daniel M. Smith, Supervising Attorney for San Diego Defenders
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