The author is a retired California judge. He lives in Santa Barbara.
The most obvious trouble with our bail system is that it is unfair, and always has been. Bail — where an accused buys his freedom from jail pending trial — is discriminatory, because a poor person must pay the same amount as a wealthy person charged with the same crime.
For example: “Harlan Jenkins” is arrested on suspicion of home burglary. Bail, set by a fixed schedule (which varies by county) is $30,000. The same day, “Santiago Cruz” is arrested for borrowing a power washer from his neighbor’s garage without permission, and bail is also set at $30,000. Harlan, who steals to support a drug habit, has wealthy parents who pay a bondsman $3,000 for a bond guaranteeing his court appearance. Harlan continues to burglarize homes while awaiting trial.
Santiago, a field worker with four children, doesn’t have money for a bail bond, so he remains in custody, losing his job. To get out of jail, he accepts a “plea deal” for probation, although he has a good defense.
The examples are not atypical.
A second trouble with our money bail system is that experts can’t agree on how to fix it. Several states have made recent attempts at reform, and results have varied widely. California hasn’t remained on the sidelines. In 2016, California Supreme Court Chief Justice Tani Cantil-Sakauye, a critic of the money bail system, warned the state Legislature it could no longer ignore the problem. In 2017, she appointed a commission to determine if the system unfairly penalized the poor. The commission found it did, and recommended replacement with a pretrial release system based upon risk.
In January 2018, a California appellate court decision, In re Humphrey, sent shockwaves through the judicial system by ruling that using a fixed bail schedule, rather than ability to pay, to determine pretrial release of a poor defendant, was unlawful because “a defendant may not be imprisoned solely due to poverty.”
Santa Barbara’s Superior Court, anticipating bail reform, had already implemented a risk assessment-based pre-trial release program. Last month, California’s Judicial Council awarded their foresight with $1.6 million to fund a pilot program that could serve as a model for other courts. Chief Probation Officer Tania Heitman, who will supervise the program, says the grant will allow her to hire additional probation officers, with a goal of assessing every defendant within 24 hours of booking into jail. “It’s time for the bail system to be reformed,” Chief Heitman said, adding that her pilot program should reduce Santa Barbara’s jail population.
The Humphrey decision, although not binding statewide, sent nervous courts scrambling to comply, hastily adopting risk assessment guidelines and adding probation officers to implement them. It also nudged California lawmakers to enter the fray. In August 2018, the Legislature passed Senate Bill 10, heralded as the most progressive reform in the country. Money bail was to be abolished. Pretrial release of defendants was to be determined by ability to pay, along with risk of further criminality and failure to appear. A judge could hold defendants in jail without bail, however, by finding them dangerous. The new law was to take effect next month.
Then a strange thing happened. Reformers who had championed the legislation now complained that cautious judges could refuse to release defendants they deemed dangerous. And, since defendants could no longer buy pretrial freedom with money bail, more, instead of fewer, would remain in jail. California’s 3,200 bail agents joined reformers in opposing the law, which would destroy their livelihood and their industry’s annual $2 billion business. These unlikely allies backed a referendum petition to put Senate Bill 10’s implementation on hold until voters could decide for or against it. They succeeded, collecting over 575,000 signatures in 70 days.
The future of money bail in California is now scheduled to be decided by the electorate in the November 2020, election. Most observers predict Senate Bill 10 will be rejected by voters who prefer to retain their money bail system.
But referring Senate Bill 10 to voters could turn out to be a useless act. The California Supreme Court may make an end run around both the Legislature and the voters, and decide the issue themselves. The court has agreed to review In re Humphrey and determine whether use of money bail violates the California Constitution. Chief Justice Cantil-Sakauye likely telegraphed the high court’s ruling when she branded the system “unsafe and unfair.”
The Supreme Court will hold oral arguments within a few months, with a decision expected before next year’s referendum vote. Stay tuned.