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“In our society, liberty is the norm, and detention prior to trial or without trial is the carefully limited exception.” — United States v. Salerno (1987)

Should Californians who are arrested be forced to languish in jail until their case is resolved, simply because they lack the cash needed to be released on bail? In a nation that prizes liberty — and in which people are presumed innocent until proven guilty — the answer clearly should be “no.” But that’s not how California’s pretrial justice system works.

Thousands of Californians Sit in Jail Because They Can’t Afford a Bail Bond

On any given day, thousands of people who have been accused — but not convicted — of crimes sit in California’s bulging-at-the-seams jails because they can’t afford to buy their way out after the court has set bail. While bail bonds allow defendants to purchase their freedom for just a fraction of the cost of full bail, they are still out of reach for many people. Buying a bail bond requires having enough cash to cover the bond seller’s fee, which is typically around 10 percent of the full bail amount. This fee can total thousands of dollars and, especially important, is nonrefundable, even if the charges are dropped or the defendant is acquitted at trial. (In contrast, full bail paid directly to the court is refundable.) The bond seller also may require collateral, such as a house, a car, or jewelry.

Not surprisingly, many people lack the resources needed to purchase a bail bond. These cash- and property-poor individuals remain stuck in county-jail limbo for weeks or even months waiting for their cases to be resolved, putting them and their families at risk of losing income, their car, and the roof over their heads. In fact, being locked up in jail even for just a few days can have “dire consequences.” Facing this reality, some people plead guilty to a crime they didn’t commit in exchange for a “time-served, go home sentence.”

Some Californians Manage to Buy Bail Bonds – at a High Financial Cost

People with access to ample cash and property can buy their way out of jail with relatively little financial pain, either by paying the full bail amount or by purchasing a bail bond. But people with low or moderate incomes aren’t so fortunate. Scraping together the resources to secure a bail bond — which can involve both a down payment and sizeable monthly payments to the bail bondsman — can be financially destabilizing. Nonetheless, people will “put themselves in financial peril to pay bail because they know that being out of custody vastly improves their chances of successfully resolving their case,” according to a Human Rights Watch analysis of California’s pretrial justice system. In other words, the many advantages of being out of jail while a case proceeds far outweigh — at least in the short-term — the enduring financial consequences of taking on an excessive amount of bail bond debt.

California’s Bail-Oriented Pretrial Justice System Has Other Flaws

In addition to being inequitable, coercing guilty pleas, and saddling people with debt they can ill afford, California’s heavy reliance on bail has a number of other serious shortcomings. These include:

  • Failing to put public safety first. The bail system prioritizes wealth over risk. Defendants can get out of jail as long as they have access to enough cash and property, regardless of the threat they may pose to victims or to the public at large.
  • Contributing to California’s jail capacity challenges. Statewide, roughly two-thirds of people in jail — around 48,000 individuals — are not serving a sentence for a crime. This “unsentenced” population includes thousands of people who can’t afford to post bail following their arrest. (It also includes people who are awaiting sentencing following a conviction.) Filling limited jail beds with thousands of pretrial detainees creates capacity challenges and compels early releases of people who have been convicted of a crime and are serving their sentences in overcrowded jails.
  • Wasting local tax dollars. Incarcerating thousands of low-risk defendants who can’t afford to post bail needlessly drives up counties’ costs for jails. This misallocation of limited local tax dollars leaves fewer funds to support other critical public services and systems.

AB 42 and SB 10 Seek to Fix California’s Broken Pretrial Justice System

Two bills currently moving through the Legislature — Assembly Bill 42 (Bonta) and Senate Bill 10 (Hertzberg) — aim to modernize California’s pretrial justice system, including by restricting the role of bail. (The two bills are identical.) AB 42 and SB 10 would:

  • Reduce the number of people who are detained prior to a trial simply because they are unable to pay bail. In general, people would be released soon after their arrest, possibly with conditions imposed by the court. Any such conditions would have to be the least restrictive necessary to “assure the appearance of the person as required, the safety of the victim, or public safety.” Pretrial detention would be reserved for the people accused of the most serious crimes.
  • Allow courts to set bail as a condition of release, but only as a last resort. Bail would have to be set “at the least restrictive level necessary to assure the appearance of the defendant in court as required.” In addition, the bail amount would have to be affordable to the defendant and could not be set so high that it “results in the pretrial detention of a defendant because of his or her inability to pay.”
  • Require courts to consider risk assessments and recommendations that would be prepared by new pretrial services agencies. Each of California’s 58 counties would be required to establish a pretrial services agency. (A handful of counties already have one.) The risk assessments and recommendations prepared by these new agencies would help to guide court decisions around conditions of release. If a court’s decision regarding any such conditions differed from the pretrial services agency’s recommendations, the court would be required to provide a rationale for its decision.
  • Establish a new set of pretrial services for people who have been released from jail pending a resolution of their case. In addition to preparing individual risk assessments, pretrial services agencies would help people comply with the conditions of their release, alert them of their upcoming court dates, and — when ordered by the court — provide “appropriate supervision” of individuals subject to pretrial release. According to Human Rights Watch, pretrial services such as reminder calls “are proven to reduce missed court dates without incurring the costs of locking people in jail.”
  • Allow pretrial services agencies to provide additional services to people who have been released from jail pending a resolution of their case. These new entities could 1) coordinate the services of various individuals and organizations that serve as “third-party custodians” for released defendants and 2) help these individuals to “access medical, legal, and social services that would increase the chances of successful compliance with conditions of pretrial release.”

How Much Would AB 42 and SB 10 Cost?

As yet, there is no California-specific study that projects the cost of AB 42 and SB 10. We’ll have an answer soon enough: The appropriations committees in the state Assembly and Senate are preparing their cost estimates, which are expected to be released later this month. Because the reforms would be implemented by the state and the counties, these committee analyses will have to assess potential costs at the state level (e.g., new court-related responsibilities) as well as at the local level (e.g., the requirement to create and operate pretrial services agencies).

Projecting the cost of AB 42 and SB 10 at the county level will be challenging. This is because any analysis must take into account the complex fiscal relationship between the state and local governments, which is shaped by rules outlined in the state Constitution and in state law. In general, the state must reimburse local governments — including counties — for any costs related to a “new program or higher level of service” that is mandated by the state. However, reimbursement is not required if a bill “provides for offsetting savings to local agencies…that result in no net costs to the local agencies.” In other words, local governments may seek state reimbursement only for the share of new local costs that exceeds the local savings attributable to a state policy change. All of this gets sorted out through a cumbersome process overseen by the Commission on State Mandates (CSM). Local officials first ask the CSM t­o decide whether a state policy change is a mandate. If the answer is “yes,” locals then file annual claims seeking reimbursement for their eligible expenditures.

As noted above, AB 42 and SB 10 clearly would create new local costs by requiring counties to support pretrial services agencies. But would counties experience any savings (e.g., from smaller jail populations) that would count against their new costs in calculating the amount that the state would owe them? This is a question with no easy answer, given the complexities of state mandate law. In part, the answer could depend on whether these reforms, in the CSM’s view, provide for savings that counties could not otherwise have achieved absent the legislation. For example, if all counties are currently able to reduce the role of bail in pretrial-release decisions — as Santa Clara County has done — would AB 42/SB 10 actually provide counties with new savings that would offset their new costs? It’s not certain how the CSM would answer this question.

Moreover, even if the CSM concluded that the legislation does provide counties with offsetting savings, it’s unclear how stringent the Commission would be in requiring counties to calculate these savings. For instance, how rigorous would counties’ cost-savings models need to be? Who, if anyone, would vet the methodology? Would all counties need to use the same model and take the same factors into account? The answers to these questions would affect counties’ savings calculations, which in turn would help to determine the state’s annual costs for the reforms proposed by AB 42 and SB 10.

The Challenge for California Policymakers: Creating a Pretrial Justice System That Reflects Our State’s Values

Bail has a long history, extending back more than 1,000 years to medieval England, among other places. Bail has endured as a key feature of the criminal justice system in the United States, where it has fueled a lucrative bail bond industry. However, bail has come under increasing scrutiny as its disadvantages have become more evident. Critics from across the ideological spectrum have urged the adoption of evidence-based approaches that make risk, not wealth, the key factor in determining who should be detained in jail and who can be safely released pending trial. Places as diverse as Kentucky and Washington, DC have successfully reoriented their pretrial justice systems away from bail, and pressure for reform is building elsewhere, including in Maryland, New Mexico, and Texas. Now California’s policymakers must decide whether it’s time to transform our state’s approach to pretrial justice, with the aim of building a system that is more equitable and effective — and that better reflects California’s values.

— Scott Graves

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