California Becomes First State to End Cash-Bail System

by | August 29, 2018

By Bob Egelko

California will become the first state to let people leave jail before trial without having to post bail, under a law signed by Gov. Jerry Brown on Tuesday that largely leaves pretrial release decisions up to local judges -- a change praised by legislative and judicial leaders but condemned by some criminal defense advocates.

SB10 abolishes the long-standing system of requiring newly arrested defendants to put up bail, in an amount based on the seriousness of the charges, to be freed while awaiting trial. Bail-bond companies and other advocates say the current bail system promotes public safety and encourages defendants to show up in court, but opponents note that poor people are kept in jail because they can't afford to pay their way out.

More than 48,000 county jail inmates in California -- two-thirds of the jail population -- have not yet been convicted of a crime, and most of them are being held because they are unable to post bail, according to a recent state study.

With the new law, scheduled to take effect in October 2019, "California reforms its bail system so that rich and poor alike are treated fairly," Brown said Tuesday after signing the bill.

Assemblyman Rob Bonta, D-Alameda, a co-author of the bill, said the bail system "has allowed the wealthy to purchase their freedom regardless of their risk, while the poor who pose no danger languish in jail." The new measure was also praised by Chief Justice Tani Cantil-Sakauye after the state's Judicial Council, which she chairs, took an unusually public position in successfully pushing for revisions to an earlier version of SB10. The current system was "outdated, unsafe and unfair," she said in a statement, and it took a "three-branch solution" -- the governor, legislators and judicial leaders -- to eliminate it.

But some longtime opponents of cash bail said the new law would simply replace one system of pretrial detention with another, based on decisions by individual judges who will consider a set of prescribed "risk assessments" and then decide, with little possibility of appeal, whether a defendant is safe enough to release or must remain behind bars.

SB10 "cannot guarantee a substantial reduction in the number of Californians detained while awaiting trial, nor does it sufficiently address racial bias in pretrial decision-making," said leaders of the American Civil Liberties Union in California, who had supported a version of the bill that gave judges less control over pretrial release.

San Francisco Public Defender Jeff Adachi said SB10 "handed the keys to the judges," and he fears that the new law "will result in more people being locked up." He also contended Cantil-Sakauye has a conflict of interest because the state Supreme Court is considering a constitutional challenge to the current cash-bail system.

Most law enforcement groups also opposed SB10, along with the bail-bond industry, which would be effectively eliminated with the abolition of cash bail.

Bond companies charge defendants a nonrefundable 10 percent fee to post bail. As of 2014, according to a study released by the Judicial Council, bail agents in California were collecting more than $308 million a year in fees.

Once bail is abolished, "who's going to bring people back to court when they don't show up?" asked Harmeet Dhillon, lawyer for the California Bail Agents Association, which is arguing in support of the current law in an Oakland federal court. She said bond companies "would welcome some reforms to the current bail law without eliminating it."

One other state, New Jersey, eliminated cash bail for nearly all crimes in January 2017, and has reported a substantial decline in its jail population with no significant increase in major crimes. Unless SB10 is successfully challenged in court, California, as of October 2019, will become the first state to go further and prohibit requiring defendants to post bail for any crime.

People held on capital charges would still not qualify for pretrial release. Nor would defendants with recent serious or violent felony convictions, those charged with domestic violence, or those who had been granted bail in the past and repeatedly failed to appear in court.

Others could be freed while awaiting trial, with monitoring, but their prospects for release would depend on the charges, their record, and the judge's assessment of the risk they would pose.

Those accused of nonviolent misdemeanors, like small-scale shoplifting, would be freed from jail within 12 hours after being booked, with some exceptions. For others, the judge would decide whether they posed a low, moderate or high risk of fleeing or committing another crime. County courts would establish mathematical "risk assessments" to help determine who should be released.

One critic of the bill, Santa Clara University law Professor W. David Ball, said an earlier version of the legislation would have used those assessments only to qualify defendants for pretrial release, and would have entitled others to a hearing. He said the final version, backed by judicial leaders, would allow the assessments to be used to grant or deny release, and would leave the final decision with the judge.

"Hopefully, this is not the end of the road," said Ball, who worked with the ACLU on the first draft of the bill.

Supporters of SB10 said the law is an essential first step toward repairing a system that is expensive, ineffective at preventing crime, and unfair to thousands of pretrial detainees.

"Our path to a more just criminal justice system is not complete," said Sen. Bob Hertzberg, D-Van Nuys, lead author of the bill. "But today it made a transformational shift away from valuing private wealth and toward protecting public safety."

staff writer Melody Gutierrez contributed to this article.

(c)2018 the San Francisco Chronicle