California’s bail system is currently based on ability to pay, rather than risk posed.  Currently, when a person is arrested, bail is set according to a county fee schedule and depends on the seriousness of the alleged crime.  Suspects must post the amount upfront, or pay a 10% fee, as in a down payment, to a bond company before they are released on bond.  Those who can’t afford to do so can remain incarcerated up to an additional 24 hours, or longer on weekends or holidays, before they are formally charged and arraigned.  A judge then sets the conditions for release before trial, which typically includes bail, and weighs factors including whether the defendant poses the risk of fleeing or are a threat to their community.  Currently, the bail system as it is set up, disproportionately affects people of color and the poor.  People who don’t have the means to post bail can lose their employment or housing.  This translates into loss of wages, jobs and family connections.  40% of defendants put into this position, are more likely to commit a crime in the future.


There have been many calls before to reform the system.  Police officers and prosecutors have pointed to dangerous or repeat offenders who pay their way out of jail time.  Bail agents point to the high number of people who jump bail.  Criminal justice advocates point to hefty fees levied on the poor.


This legislative session, reform may be a possibility as SB 10, the California Bail Reform Act of 2017, has been unveiled by Assemblyman Rob Bonta and state Sen. Bob Hertzberg.  Under this legislation, those agencies would develop a “risk-assessment tool,” or model analysis to evaluate people booked into jail.  Release would depend on two factors: 1) What threat do they pose in the community and 2) how likely are they to come back to court? The main goal here is to ensure dangerous offenders aren’t able to skip spending time behind bars solely because they can afford bail.  This bill would eliminate the use of bail fee systems and require counties to establish their own pretrial services agencies.  SB 1o would eliminate the use of fixed money bail.  It would also require counties to establish pretrial services agencies to evaluate defendants for release upon booking based on the public safety risks they pose.  Only suspects not charged with a violent felony would be eligible for risk assessment.  People charged with misdemeanors (except in certain cases like domestic violence) would be let go without further conditions upon signing a release agreement.  Agencies would submit their recommendations on felony suspects to judges, who ultimately decide when to release people from jail.

However, there are some hurdles.  There are currently no statewide standards or uniform fees to apply when courts set bail.  Instead, judges in each of the state’s counties craft their own approaches to bail and sets of fixed bail amounts, leading to wide disparities.    Another hurdle to reform is uncertainty over the cost.  Also, there is strong opposition by bail agents and their lobbyists, who argue that SB 10 would hurt small business, could cost counties up to $2 billion and would increase the number of people wanted on arrest warrants.

It remains to be seen how SB10 will do.  We will keep track of SB10 as it winds its way down Sacramento.


By: Philip Cho

Law Office of Jeffery Rubenstein

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