If you are arrested on a criminal charge in Southern California, you may have to pay a cash bond to be released – even if you are innocent.
For several years, a national effort has been underway to eliminate cash bonds – the money that suspects pay to get released from jail while awaiting trial.
Why? One reason is because criminal suspects are supposed to be considered innocent until they are proven guilty.
DOES THE BAIL SYSTEM VIOLATE THE RIGHT TO “EQUAL” PROTECTION?
Secondly, cash bonds disproportionately impact the poor, who often can’t afford even a bail bond service. At least one court has held that the disproportionate impact violates the Constitution’s equal protection clause.
The national effort to move away from a money-based bail system was joined late last year by California Chief Justice Tani Cantil-Sakauye, who recommended abolishing cash bonds and expanding pretrial services in our state.
The Chief Justice was responding to a report published last October by the Judicial Council of California, a policymaking and advisory council that works with California’s state courts.
WHAT WERE THE JUDICIAL COUNCIL OF CALIFORNIA’S FINDINGS?
Calling the California bail system “unsafe and unfair,” the Judicial Council concluded that the state focuses unfairly on a defendant’s finances rather than the defendant’s safety or flight risk.
The report confirmed the bail system’s inherent unfairness. Poor suspects remain in jail awaiting trial, not because they have been found guilty of any crime, but simply because they are less affluent than other suspects.
California State Assemblyman Rob Bonta (D-Oakland) and State Senator Bob Hertzberg (D-Van Nuys) have co-authored legislation that would bring big reforms to California’s cash bail system.
WHAT’S THE MOST RECENT COURT RULING REGARDING CASH BAIL?
And in January, the California First District Court of Appeal ruled that high bail amounts are justified only for defendants who are considered too dangerous to release.
In that case, the Court of Appeal ordered a new bail hearing for Kenneth Humphrey, 63, who had been sitting in a San Francisco jail on a robbery charge since May 2017.
Humphrey could not pay his $350,000 bail or even come up with the $35,000 that he needed for a bail bond service. The Court of Appeal said, “A defendant may not be imprisoned solely due to poverty.”
The panel of three judges agreed that “by setting bail in an amount it was impossible for [Humphrey] to pay,” it constituted a violation of the “due process protections” guaranteed in the Constitution.
If reforms are made in the state’s bail system, California would join New Jersey and New York City, which have made sweeping bail system reforms.
WHAT WOULD REPLACE THE CURRENT BAIL SYSTEM?
A number of other states are also re-assessing the entire concept of cash bail. The report from the Judicial Council of California recommends replacing the current system in California with:
1. a pretrial assessment of each defendant’s flight and safety risk
2. expanded and comprehensive pretrial services
3. preventive detention for the most dangerous defendants
California’s Chief Justice strongly supports the recommendations. She also said that the current pretrial system in California unnecessarily risks victim and public safety.
California currently has one of the nation’s highest bail schedules as well as one of the highest rates of defendants who fail to appear in court.
HOW MANY ARE IN CALIFORNIA JAILS – JUST BECAUSE THEY’RE POOR?
Natasha Minsker is the director of the American Civil Liberties Union (ACLU) of California’s Sacramento office. She says that nearly sixty percent of those who are in the state’s jails are people who can’t afford to post bail.
Minsker told National Public Radio (NPR), “the bail system in California is not working from a justice perspective. And it’s not working from a safety perspective. Cash bail is failing at its basic jobs.”
DOES THE CURRENT BAIL SYSTEM STILL HAVE SUPPORTERS?
That critical view of the bail system is not universal, however. Some California judges and prosecutors, as well as bail industry spokespersons, say that cash bail is a useful tool that has worked well for decades.
Jeff Clayton, for example, speaking for the American Bail Coalition, told NPR, “we do our best work, in terms of reducing long-term fugitive rates and returning people to court when they flee, in high-risk felony cases.”
Clayton agrees that reform is needed. Bail is too high, he says, and non-violent offenders with little income should not have to linger in jail. But Clayton says eliminating cash bail is extreme.
Supporters of cash bail also believe that its elimination in California would conflict with the state’s constitutional provision that defendants have a right to bail under “sufficient sureties.”
WHAT MAY BE REQUIRED TO CHANGE THE BAIL SYSTEM?
Supporters of cash bail insist that any substantial changes in the bail system would require a state constitutional amendment. It is estimated that reforms – mostly the expansion of pretrial services – will cost several hundred million dollars.
Nevertheless, California is changing the way it handles defendants who are charged with a crime. Cash bail may not be eliminated entirely, but it will probably be rare in the future.
No one, of course, should think that reforms to the criminal justice system will mean relaxed enforcement of the law.
If you are accused of a crime in southern California, you must have the help of an experienced Long Beach criminal defense attorney – immediately.
WHEN DETERMINING A BAIL AMOUNT, WHAT DO JUDGES CONSIDER?
When determining a bail amount, a California judge will consider the particulars of the charge, the defendant’s criminal record, the safety of the public, and the chances that the defendant, if released, will fail to appear in court.
If you are accused of committing a crime, you have the right to an attorney. Exercise your right, and do not try to be your own defense lawyer. Your future and even your freedom may be at stake.
HOW CAN A DEFENSE ATTORNEY HELP?
An experienced Long Beach criminal defense attorney can advise you about bail, protect your rights, and help you face the challenges that every criminal defendant must deal with.
After the court decides the amount of your bail, California allows you to pay it with cash, a bail bond, or a property bond.
If you appear in court as scheduled, and if you’re found not guilty or the charge is dismissed, a cash bail will be returned. If you’re convicted, your bail may be used toward your fine.
If you do not appear for court, you will forfeit your bail money, and a bench warrant will probably be issued for your arrest.
If you are charged with a crime in southern California, do not put yourself further at risk. You must have a good criminal defense attorney’s advice and representation. It’s your freedom, your future, and your right.