California could dramatically change the way it pressures criminal defendants to show up for court, doing away with monetary bail for most and taking income into account for others to ensure poor suspects get an equal shot at freedom.
Instead of requiring suspects to post bail, county officials would decide whether to release them based on their risk to public safety and would use jail alternatives like home detention or monitoring devices that track their locations.
When a judge decides monetary bail is needed for suspects accused of serious or violent crimes, the amount would be based on defendants’ incomes instead of on a predetermined bail schedule that varies in each of California’s 58 counties.
“It fundamentally transforms a broken cash bail system that punishes poor people for being poor,” said Assemblyman Rob Bonta, D-Oakland.
He and Sen. Robert Hertzberg, D-Van Nuys, have submitted bills that would create the new system. Hertzberg’s bill had its first committee hearing Tuesday.
The current system keeps many innocent people behind bars, disproportionately affects minority defendants and encourages some suspects to plead guilty simply to get out of jail, bill supporters say.
When defendants can’t post bail they often hire a bail company that puts up the money for a fee, typically 10 percent of the full bail amount. The company must pay the court in full if the accused don’t show up.
The median bail in California was $50,000, the Public Policy Institute of California reported last year, and the $5,000 required to get a company to post bail is out of reach for many.
If a person is acquitted or the charges are dropped, bail money they put up themselves is returned.
But if they hire a bail company they lose the 10 percent. That’s what happened to Ato Walker, a 37-year-old janitor from San Jose.
He was jailed for five days nearly four years ago when his bail was set at $165,000 following a confrontation with police. It was reduced to $85,000 and his mother was able to pay $8,500 to a bail company to get him out of jail. The charges were dismissed eight months later but the $8,500 was gone.
“The justice system is disproportionately punitive to poor people,” Walker said. “It’s not fair; it’s not right.”
The bail business and some victim rights and law enforcement groups oppose the bills. They say the changes will allow dangerous people back on the streets, victims won’t be able to object beforehand and suspects will be more likely to skip court dates.
“I think it’s a mistake to substitute some risk assessment formula for what judges are already doing when they grant bail. I think we’re going to see more defendants who just don’t show up,” said Michael Rushford, president of the Criminal Justice Legal Foundation, a nonprofit that advocates for crime victims.
Corrin Rankin of the California Bail Agents Association said counties already have the option of freeing suspects without bail, but argued that having money at stake remains the best way to ensure that defendants show up in court.
Rankin, who runs the Out Now Bail Bonds company south of San Francisco, predicted counties won’t save enough money to pay for the intensive pretrial supervision envisioned in the bills.
California Supreme Court Chief Justice Tani Cantil-Sakauye last week told state lawmakers that California’s courts already are testing 11 pretrial bail alternatives and developing a formula to help decide whether individuals have the ability to pay bail, fines and court fees.
John Lovell, who represents several law enforcement organizations including the California Narcotic Officers’ Association, suggests lawmakers wait to act until the court’s Judicial Council completes its review later this year.
The bills’ supporters say there is little statistical difference in how often suspects show up in court if they are released without bail. They say it is much cheaper to monitor suspects than to jail them and that releasing lower-risk suspects frees up room in overcrowded jails for more serious criminals.
Variations on the California proposal are already in place in Kentucky, New Jersey and Washington, D.C., and some local California jurisdictions, including San Francisco, Santa Clara and Santa Cruz Counties.
The bills are part of a nationwide push to reduce mass incarceration and close the gap between how rich and poor are treated by the justice system.
For example, Hertzberg authored a traffic ticket amnesty program in 2015 that expired Monday. This year, he wants to block automatically suspending driver’s licenses for drivers who can’t pay traffic tickets and require judges to consider violators’ ability to pay before setting fine amounts.
Every state has made some change to its pretrial release law since 2012, said Amber Widgery, a criminal justice policy specialist with the National Conference of State Legislatures.
“Six out of every 10 people held are not convicted of a crime,” she said. “That’s been of great concern to state lawmakers because in this country we have a presumption of innocence, so why if you’ve not been convicted of anything are you still in jail?”