The most obvious trouble with our bail system is that it is unfair, and always has been. Bail — where an accused buys freedom from jail pending trial — is discriminatory because a poor person must pay the same amount as a wealthy person charged with the same crime.
For example: Harlan Jenkins is arrested for home burglary. Bail, set by a fixed schedule (which varies by county) is $30,000. The same day, Santiago Cruz is arrested for borrowing a power washer from his neighbor’s garage without permission, and bail is also set at $30,000. Harlan, who steals to support a drug habit, has wealthy parents who pay a bondsman $3,000 for a bond guaranteeing his court appearance. Harlan continues to burglarize homes while awaiting trial.
Santiago, a field worker with four children, doesn’t have money for a bail bond, so he remains in custody , losing his job. To get out of jail, he accepts a “plea deal” for probation, although he has a good defense.
The examples are not atypical.
A second trouble with our money bail system is that experts can’t agree on how to fix it. Several states have made recent attempts at reform. Results have varied widely. In 2017, New Jersey replaced money bail with a system where judges base pretrial release upon “risk assessment” of the likelihood the accused will commit further crime or fail to appear in court. Under their new system, the predicted crime wave didn’t occur, and failures to appear rose only slightly. But the system is “facing a funding crisis” because of its high cost.
Last year, Alaska adopted a system basing pretrial release on an algorithm generated prediction of future criminality and failure to appear. Most defendants were then released from jail due to low risk scores. When crime increased, and promised budget savings failed to occur, the law was deemed a failure and repealed.
In Texas, the House of Representatives boasted passage of a bail reform bill early this year, only to have the Texas Senate reject it.
California hasn’t remained on the sidelines. In 2016, State Supreme Court Chief Justice Tani Cantil-Sakauye, a critic of the money bail system, warned the California Legislature it could no longer ignore the problem. In 2017, she appointed a commission to determine if the system unfairly penalized the poor. The commission found it did, and recommended replacement with a pretrial release system based upon risk.
In January, 2018, a California appellate court decision, In re Humphrey, sent shock waves through the judicial system by ruling that using a fixed bail schedule, rather than ability to pay, to determine pretrial release of a poor defendant was unlawful because “a defendant may not be imprisoned solely due to poverty.”
The Humphrey decision, although not binding statewide, sent nervous courts scrambling to comply, hastily adopting risk assessment guidelines and adding probation officers to implement them. It also nudged California lawmakers to enter the fray. In August, 2018, the Legislature passed, and the governor signed, Senate Bill 10, heralded as the most progressive reform in the country. Money bail was to be abolished. Pretrial release of defendants was to be determined by ability to pay, along with risk of further criminality and failure to appear. A judge could hold defendants in jail without bail, however, by finding them dangerous. The new law was to take effect next month.
Then a strange thing happened. Reformers who had championed the legislation now complained that cautious judges could refuse to release defendants they deemed dangerous. And, since defendants could no longer buy pretrial freedom with money bail, more, not fewer, would remain in jail. California’s 3,200 bail agents joined reformers in opposing the law, which would destroy their livelihood and their industry’s annual $2 billion business. These unlikely allies backed a referendum petition to put Senate Bill 10’s implementation on hold until voters could decide for or against it. They succeeded, collecting over 575,000 signatures in 70 days.
The future of money bail in California is now scheduled to be decided by the electorate in the November 2020, election. Most observers predict Senate Bill 10 will be rejected by voters who prefers to retain their money bail system.
But referring Senate Bill 10 to voters could turn out to be a useless act. The California Supreme Court may make an end run around both the Legislature and the voters, and decide the issue themselves. The court has agreed to review In re Humphrey and determine whether continued use of money bail violates the California Constitution. Chief Justice Cantil-Sakauye likely telegraphed the high court’s ruling when she branded the system “unsafe and unfair.”
The Supreme Court will hold oral arguments within a few months, with a decision expected before next year’s referendum vote. Stay tuned.
David Minier of Fresno is a retired Superior Court judge and former district attorney for Madera and Santa Barbara counties.