California No-Bail Law: To Be Decided in 2020

California No-Bail Law: To Be Decided in 2020


California may become the first state in the nation to abolish bail for suspects awaiting trial under a sweeping reform bill signed by Gov. Jerry Brown in August 2018. Brown stated that “California reforms its bail system so that rich and poor alike are treated fairly.”

The governor has waited nearly four decades to revamp the state’s cash bail system. In his 1979 State of the State Address, Brown argued the existing process was biased, favoring the wealthy who can afford to pay for their freedom, and penalizing the poor, who often are forced to remain in custody.
What is the Current Law?

When someone is arrested, that person typically has a constitutional right to post bail to get out of custody before standing trial.

A bail bondsman often assists with that process, requiring a much smaller financial commitment from the arrested individual. But that ultimately comes with a fee of up to 10 percent for the bondsman. A third, but rarely used, bail option involves putting up your property in exchange for release.

Those who fail to show up for court lose their bail money. So do bail bondsmen when someone does not show, which is why they aggressively track their defendants.

Under current law, the bail amounts are established by judges in each county. Each crime carries its own bail amount. Felony bail begins at $10,000.

Does Every Defendant Have a Right to Bail?

The option does not exist when a defendant is charged with a capital crime, such as homicide; a felony involving violence or sex; if the judge decides the person’s release would result in great bodily harm to someone; or when the defendant has threatened someone.

What does this Bill Do?

The new law places their fate in the hands of judges, who will have broad discretion to decide who is dangerous or a flight risk. Defendants will be measured “low,” “medium,” or “high risk,” but each court will set its own procedures.

Suspects accused of violent felonies or sex crimes do not stand a chance of getting out before trial. Most alleged misdemeanants, however, will go home with money in their pocket.

The option does not exist when a defendant is charged with a capital crime, such as homicide; a felony involving violence or sex; if the judge decides the person’s release would result in great bodily harm to someone; or when the defendant has threatened someone.

A person whose risk to public safety and risk of fleeing is determined to be “low” would be released with the least restrictive non-monetary conditions possible, according to the bill. Those conditions are not specified in the law, but might include a monitor attached to a defendant’s ankle or required check-ins with authorities between hearings.

“Medium-risk” individuals could be released or held depending on local standards under the new law.

“High-risk” individuals would remain in custody until their arraignment, as would anyone who has committed certain sex crimes or violent felonies; is arrested for driving under the influence for the third time in less than 10 years; is already under supervision by the courts; or has violated any conditions of pretrial release in the previous five years.

SB 10 also introduces a process for prosecutors to file for “preventive detention,” blocking release pending trial, if they believe no conditions would ensure public safety or the defendant’s appearance in court.

Impact on Bail Bond Industry

Topo Padilla, president of the Golden State Bail Association, said the bill eliminates his industry. “Bail bondsmen are insurance agents. We issue an insurance policy to the court guaranteeing a person’s appearance in court. If a person fails to appear in court, the bail industry goes out and returns people to the court. If we fail to return the person to court in time, we pay the full amount of the bond.”

Now, he said, people charged with crimes can only get out of jail if a judge releases them. He predicted that law enforcement “is now going to be strapped with time, effort and costs with returning those people to custody.”

Fiscal Effect Of This Law?

According to the Assembly Appropriations Committee, the law will likely cost “in the low hundreds of millions of dollars annually,” mainly for courts to create a system for pretrial assessment services to determine if a person can be released. Other legislative analyses put the annual cost at about $200 million.

The Assembly committee analysis says there could also likely be millions of dollars saved annually in jail costs if fewer defendants are held before trial. However, the analysis notes that no money would be saved if county jail administrators use the bed space instead to house convicted criminals for longer periods of time.

Opposing Views

Opponents, including some social justice groups, argue the new law gives judges too much power to decide who should be released and will allow dangerous people to go free.

Date of Effect

The nation’s first law eliminating bail for suspects awaiting trial is on hold until California voters decide whether to overturn it.

A referendum that qualified for the 2020 state ballot would overturn the law signed last year by then-Gov. Jerry Brown. The law scheduled to go into effect in October 2019. Now it must be approved by a majority of voters before it can take effect.

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