Crime & Justice

Is California on the verge of bail reform?

Gavel and scales of justice
Gavel and scales of justice
Photo by Penn State via Flickr Creative Commons

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With Governor Jerry Brown and California Chief Justice Tani Cantil-Sakauye throwing their support behind bail reform, advocates predict the state will soon change its system for releasing people from jail as they await trial.

"To get this commitment from two of the enormous players is a huge deal," said Peter Eliasberg of the American Civil Liberties Union of Southern California.

"Bail reform in California is imminent," said State Sen. Bob Hertzberg (D-Van Nuys), who authored SB 10, a bill that would change the bail system. Hertzberg’s bill stalled amid heavy opposition from bail agents, who argue that changing the system could lead to the release of dangerous criminals.

But the question remains, how far will the changes go? Brown gave no hint Friday in announcing his support for changes "that prioritize public safety and cost-efficiency."

He added in a statement, "I believe that inequities exist in California’s bail system and I look forward to working this fall on ways to reform the system in a cost-effective and fair manner, considering public safety as well as the rights of the accused."

Brown said he will work on SB 10 through the fall with Cantil-Sakauye, Hertzberg and Assemblyman Rob Bonta (D-Alameda), who introduced a companion bill in the Assembly, "and the bill will be revisited early next year, in the second year of the two-year legislative session."

In a statement Friday expressing her support for reform, Cantil-Sakauye also did not commit to a specific path forward.

"During my State of the Judiciary address last year I suggested that the current bail system may not effectively serve its intended purpose of protecting public safety and ensuring court appearance without disproportionately impacting low-income Californians," she said in a statement.

"I subsequently appointed a Pretrial Detention Reform Work Group to study current pretrial detention practices and provide recommendations for potential reforms. I look forward to sharing these recommendations with the Governor and Legislature as we work together to improve our bail system," added Cantil-Sakauye.

SB 10 would end the practice of basing the amount of bail an individual has to pay only on the crime he's accused of committing. Currently, a pre-trial detainee remains behind bars if unable to come up with 10 percent of the bail amount, which is non-refundable. Critics say that means an alleged murderer who’s rich can afford to get out of jail, but an alleged thief who’s poor can’t.

The legislation would set up a system that would rely on “pretrial assessments” to determine if a defendant is a danger to society or a flight risk.

"Let’s look at each person individually and have a judge determine whether or not they are a risk," said Hertzberg.

Earlier this year, the Los Angeles County Board of Supervisors ordered a comprehensive review of the county’s bail system.

"Getting out on bail correlates much more to a person’s ability to pay, than to any likelihood of appearing in court or relative risk to the safety of the public," Supervisors Sheila Kuehl and Hilda Solis said in their motion. "Many people remain in jail awaiting trial simply because they cannot afford bail, often losing their jobs."

L.A. County Chief Probation Officer Terri MacDonald told the supervisors that "some of the people most disadvantaged are the homeless, pregnant women, mentally ill." 

The current system has a "coercive effect" on people who are unable to make bail," said Kelly Emling, L.A. County's then-acting public defender. "They are more likely to plead guilty to crimes they may not have committed in order to get out of jail, she argued.

Bail reform is hardly a new idea, Emling said, pointing to testimony by then U.S. Attorney General Robert Kennedy in 1964 before the Senate Judiciary Committee.

"Every year in this country, thousands of persons are kept in jail for weeks and even months following arrest," Kennedy testified, according to the Robert F. Kennedy Human Rights website.

"They are not yet proven guilty. They may be no more likely to flee than you or I," Kennedy said. "But nonetheless, most of them must stay in jail because, to be blunt, they cannot afford to pay for their freedom."

Kentucky, Oregon, Wisconsin and Illinois have all banned for-profit bail bonds businesses.

New Jersey has shifted away from demanding cash bail from most defendants, and Maggie Kreins of the California Bail Agents Association told the supervisors that's led to the release of dangerous individuals.

"People arrested with 50 keys [kilograms] of cocaine, arrested with weapons, rape — they’re walking out the back door," she said.