Bail

Poor people who cannot afford to post bail fill county jails. An ACLU press report states that “California’s money bail system keeps thousands of people in jail before they get their day in court.”

Equal Justice under Law succinctly identifies the problem: “No one should spend time in jail simply because he or she is poor, but every day about 450,000 Americans sit in jail for that very reason.” In California and beyond, the elephant in the room is the operation of two systems of money bail justice: one for the rich and one for the poor.

Bail Primer

If you’ve been arrested for a crime, in most cases you don’t simply go home. The judge can allow some people to go home on their own recognizance (OR). All that is necessary for an OR release, after a judge makes a brief assessment of your reliability, is a written agreement that you will return for your next court date. This post is about state court cases involving those who are not granted an OR release—which is the majority of cases.

Procedurally, a judge will decide the severity of the charge, and upon that determination, set the bail amount. According to About Bail, “bail is a set amount of money that you pay the courts in order to stay out of jail during the time between the hearing and the trial. Depending on the severity of the crime, this amount can differ in value. Bail amounts can be several thousand dollars to several hundred thousand dollars. . . . Bail is always set to discourage you from skipping out on trial.”

If you don’t show up for a court appearance, the full amount of your bail is then owed to the courts. A bench warrant will be issued by the court to have you found and arrested. You’ve absconded—yet another alleged crime you’ll have to answer for. Good luck on ever getting bail again.

Not all states offer money bail through private bail bond companies. Areas that don’t allow private bail bonds are

• Massachusetts
• Maine
• Oregon
• Illinois
• Kentucky
• Nebraska
• Wisconsin
• Washington, DC

Bail bond companies usually charge 10 percent of the bail amount and require collateral or personal guarantees for payment of the remaining 90 percent if you abscond. A $10,000 bail bond costs $1,000—cash, check, or charge. The remaining $9,000 must be secured in case you fail to appear in court. For poor people, the bond may as well be a million dollars—they don’t have access to $1,000 to pay for their freedom between court dates, and normally they would not have collateral (i.e., real property) to secure the balance. In poor peoples’ worlds, finding collateral or a guarantor for the balance owed is like getting a winning lottery ticket—the odds are not good.

Wait! What about the Eighth Amendment?

The sixteen words of the Eighth Amendment to the US Constitution state that “excessive bail shall not be required, nor excessive fines imposed, nor cruel and unusual punishments inflicted.” The reference to bail applies to the money paid by a person awaiting trial or other court proceedings. The word excessive means that which exceeds what is usual, proper, necessary, or normal.

The fact that the Eighth Amendment is not considered when determining proper or necessary bail schedules supports the argument that states such as California allow their money bail systems to favor the rich over the poor. Such unfair systems also raise racial discrimination issues.

In their report “The Impact of Implicit Racial Bias on the Exercise of Prosecutorial Discretion,” Robert J. Smith and Justin D. Levinson give evidence to suggest that, at least in some jurisdictions, minority defendants receive less favorable pretrial detention determinations than their white counterparts. According to the report, this finding might be partially driven by implicit racial attitudes and stereotypes. In the bail context, in addition to the stereotype of the black defendant as hostile and prone to criminality (which in itself could lead to inflated bail requests), racial bias might also operate through the implicit devaluation of the defendant.

Unfortunately, the straightforward wording of the Eighth Amendment has been derailed by the power of a partially blind judicial system. The avoidance of excessive bail has been lost in racial distractions and the failure to consider humane factors that are implicit in the amendment. The ramifications of excessive bail have a deep impact on the accused and their families. Wage earners who cannot afford cash bail lose income and jobs. The effect on dependents is enormous. Students’ educations are compromised. The list of horrible consequences is long.

California Bail Bills

In a legislative attempt to overhaul California’s money bail system, identical bills were introduced into the Assembly and Senate. Senate Bill (SB) 10 and Assembly Bill (AB) 42, are geared toward reducing the number of people confined to jail pending trial or settlement of the charges against them because they don’t have enough cash or collateral to pay a bondsman. So, the accused sit.

The legislative intent of SB 10 (and AB 42) is to “declare the intent of the Legislature to enact legislation that would safely reduce the number of people detained pretrial, while addressing racial and economic disparities in the pretrial system, and to ensure that people are not held in pretrial detention simply because of their inability to afford money bail.”

The proposed reforms build upon common-sense solutions that mirror the OR release assessment I went through: What are the attachments a person has to his or her community? Does he or she have a job? Does he or she attend school? Are there family dependents to whom the accused provides financial support? Practical considerations provide equitable solutions.

Both bills provide the mechanism for the equitable review. The legal digest for SB 10 states: “The bill would require, except when a person is arrested for certain felonies, that a pretrial services agency conduct a pretrial risk assessment on an arrested person and prepare a pretrial services report that includes the results of the pretrial risk assessment and recommendations on conditions of release for the person immediately upon booking.” This review would take place in the hours after an arrest. As with any legislation that changes obsolete, engrained laws, there are many facets and details to the proposed law; I recommend reading either bill for all the details.

The Status of SB 10 and AB 42

On April 4, 2017, the Mercury News reported that SB 10 had passed its first hurdle toward becoming law. The author of the article, Katy Murphy, reported that the bill “passed 5–1 by the Senate Public Safety Committee, [and] the law could lead counties to release many of the 46,000 Californians behind bars, awaiting trial or sentencing without involving a bail agent.” The bill was sent to the assembly on June 26, 2017, and referred to the committee on public safety for review and eventually a vote. I will keep track of the bill’s progress and write about the results of its legislative journey in a subsequent posting.

The Mercury News article reveals state senator Bob Hertzberg’s motivation for the bill he co-authored: “‘Somebody is arrested, and because they don’t have a few bucks to get out of jail, they’re sitting in jail,’ said Sen. Bob Hertzberg, D-Van Nuys, the lead author of Senate Bill 10. ‘That is not justice. That is not what this country is about.’”

On June 1, 2017, AB 42 failed to pass the assembly by a vote of thirty-five in favor and thirty-seven noes. A motion for reconsideration is pending. I will track the path of this bill, too, and report back its legislative life or death in a future posting.

Additional Resources

Here are some sites where you can find more information and get involved:

• Find out about the New York bail reform movement at brooklynbailfund.org.
• Santa Clara County is the leader in California on bail reform. Learn more at http://bayareane.ws/2dHOsgR.
• Contact your California state senators (regarding SB 10) and assemblyperson (regarding AB 42) to voice your opinions on these bills. Follow this link to locate your California representatives.

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