Federal and State Attorney on New California Bail Reform
Last year, this blog discussed the need for Bail Reform in California in “It is Way Past Time to Rethink Bail in California.” Well, earlier this week, Bail Reform was signed into law. It ends money bail and goes into effect October 2019.
Here is how it used to work. You get arrested and taken to jail. There was a Bail Schedule in each County. Basically, the Bail Schedule was a (computerized) list of all the things people get arrested for, battery, DUI, drug cases et cetera and how much their bail was. For example, if you got arrested for a first time misdemeanor DUI, bail was $2500. If it was a felony DUI, your bail was $100,000. What most people did was pay a bail bondsman 10% and they would bail you out. The catch was, you never got your money back, even if you were never found guilty. Think of it as an arrest tax.
The bigger issue with bail is that many people who get arrested can’t even afford to pay the bail bondsman. Unless their lawyer was able to convince the Judge to release them, they jus sat in jail until their case was heard. This sometimes meant weeks or months in jail when the person had not been convicted of anything.
Lastly, there has been concern for some time that determining bail or release by Judges was subjective and that minorities were at a disadvantage.
Starting in October next year, there will no longer be bail. You will either be released upon your promise to appear or you will sit in jail until a Judge decides if you should get out and on what terms.
The new system will set up a tiered system. Whenever someone is arrested there will be an assessment. Based on the charge they were just arrested for, their past criminal history, any history of failing to show up to court and a number of other factors, If the assement determines the person is low risk or mid level.
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.
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.
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.