California Law Would End Cash Bail, Move to Risk Assessments

In August, when Governor Jerry Brown signed into law the California Money Bail Reform Act, that state took bail reform further than any of the other states that have considered or, in some cases (such as New Jersey and New Mexico) that have enacted measures on the topic. Gov. Brown claimed that the bill would revamp the Golden State’s pre-trial release system to ensure “rich and poor alike are treated fairly.”The newly enacted measure eliminates throughout the state the cash bail system, replacing it with leaving it to local court’s assessment of whether a criminal defendant poses a serious risk of flight or committing further crimes if not locked up until put on trial.

Advocates of the change argue the money bail system puts at an extreme and unfair disadvantage defendants who don’t have the money to pay for a bail bond, and so stay in jail while awaiting trial. In fact, well over half the population of the state’s jails are there because they couldn’t make bail. Some critics of money bail say it gives prosecutors a way to pressure defendants stuck behind bars – even innocent ones — into plea deals.

Here’s a summary of the new law, and of an ongoing debate over how it’s likely to affect defendants in California criminal trials.

The new law doesn’t take effect until October 1, 2019. From that date on, county officials will be responsible for determining the likelihood a criminal defendant will voluntarily show up for trial or might be re-arrested for another offense.

Those deemed to present a low risk of re-offending or no-showing would be eligible to be released before trial, and they would be subject to the least restrictive possible conditions (for example, they could be ordered to check in regularly with officials, or wear an ankle bracelet.

For defendants judged to be medium-level risks, local officials would judge whether they could safely be released pre-trial. Those viewed as high-risk defendants would not qualify for pre-trial release, Under the new law, defendants who are already under court supervision, or who have been charged with certain crimes – certain sex offenses, violent felonies, repeated impaired-driving charges, or violations of previous pre-trial release conditions – automatically are put in the high-risk category.

Governor Brown worked with state legislative leaders and the California Supreme Court chief justice, to draw up a bill, which made substantial changes from a similar bill that stalled last year.

But some supporters of the previous bill – including the California chapter of the American Civil Liberties Union and other opponents of the money bail system – didn’t back the version that emerged this year.

Their main objection was a new “preventive detention” provision empowering prosecutors to request, and courts to approve, pre-trial detention whenever nothing less could guarantee appearance at trial or public safety. Their concern was this might tempt judges to opt for frequently opt for that, to avoid political problems if a defendant they released then committed another crime. Something very like that recently happened in Maryland after it passed a bail reform bill: preventive detention orders went up by 15%.

The state’s bail bond industry, which the new law would basically put out of business, is still fighting the California Money Bail Reform Act. It’s trying to round up almost 366,000 voters to sign a petition by the end of November to force a referendum on the new law. If they succeed in getting a vote on repeal in the 2020 election, the new law will not go into effect until the voters have their say.


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