A Handful of Facts about California’s New Bail Reform Law

The California Money Bail Reform Act signed into law September 25, 2018, is meant to level the playing field between rich and poor defendants in the state’s criminal justice system. Essentially, the law eliminates cash bail and leaves the decision to release a person after arrest up to a judge, with input from other court personnel. 

Supporters of the new law assert a defendant should not be forced to endure unnecessary pretrial detention, for months, if not years, simply because there is no money to pay bail whereas other individuals, accused of similar crimes, bail out pending trial.

Why the change and when does it go into effect?

The California Court of Appeals ruled the state’s system of cash bail an unconstitutional denial of due process, which has pushed forward an agenda of criminal justice reform, beginning with cash bail. The reform act was designed to make the system of pretrial release in California more equitable for all defendants, and to eliminate the inherent bias toward wealthy offenders who can afford to meet bail to secure their freedom.

The new system goes into effect in October 2019, giving law enforcement about a year to most effectively implement the new law. According to the agencies so tasked, it is not expected to adversely affect court operations or the speed at which defendants receive trials.

How will courts decide who is released or not?

Rather than being assigned cash bail, each defendant will undergo a risk evaluation, and by that result—high-, medium-, or low-level risk—be granted pre-trial release (with or without electronic monitoring) or remain in custody to await trial.

Risk factors focus on flight risk and danger to the community; they include likelihood to appear for trial, any history of failing to appear in court (even for traffic tickets), amount of travel out of the country, and investment in the community (local family members, local job, lack of a place to flee to outside of California) and the seriousness of the charged crime; certain crimes including violent or repeat felonies will result in automatic detention.

Who will be in charge of the evaluation system?

Each of California’s 58 counties will choose and implement their own systems, and will establish local agencies to evaluate felony cases for legal risk factors. Some of the systems discussed include “algorithms,” using data to predict future behavior. The final bill has left broad judicial discretion in place, perpetuating the potential for human error and bias, as well as increasing the likelihood of detention, regardless of the risk assessment. 

Giving the court discretion to release creates the risk the DA will have a huge amount of input into the release decision at the expense of a judge listening to a defendant. Families of those detailed likely will not agree with the court’s decision in many cases and writs and appeals will be necessary in many cases to get people out who are otherwise wrongfully detained. Thus, it is absolutely essential to have the best legal representation possible at the first court appearance where bail decisions will be made and finalized.

What happens to bail bonds?

According to experts, more than 7,000 jobs may be lost in the $2 billion bail bond industry in California, which expects to close up shop entirely. Concerns among bail bonds professionals is not only the loss of their livelihood, but also the wholesale elimination of the infrastructure to recapture criminals who flee, by way of the bounty hunter system. Additionally, like many opponents of SB 10, there are fears of increased criminal activity among the general public, should the wrong defendants be granted release. The California Bail Agents Association is petitioning with their Stop SB 10 campaign, to force a November 2020 referendum.

Does this really make the system more equitable?

This law had detractors on both the left and the right. The ACLU and Human Rights Watch, both of which had initially supported the bill, withdrew their endorsement once the final bill was revealed, saying it constituted a “bait-and-switch” that would leave defendants more vulnerable to detention, not less. Meanwhile, the Alliance of California Judges called it a radical alteration of the current system and warned it would both increase risks to public safety and create bottlenecks in the court system.

How will this change the process of pretrial release?

Under any system, if you are arrested, you need to obtain a lawyer as soon as possible, and you should never speak to law enforcement without representation. Yes, you will no longer need a checkbook at arraignment, but you do need experienced, rapidly responsive counsel to argue for your release.