Bail Reform in California
In the 1949 film, “A Dangerous Profession” George Raft plays a bondsman living on the edge. Not only does he have to provide bail to earn a living, he also gets to play detective and solve cases. He is curt and tough: the classic bail bondsman.
But now, bail bondsmen are part of a fight in a new war – for their very livelihoods.
A new system for getting bail
Recently, lawmakers have been working hard to craft a new bill for acquiring bail: A version that is to replace the ‘old’ money bail system. It was approved by the full Senate and signed into law earlier this month.
But, this re-thinking of concepts within criminal justice has opened up a new can of worms that is not easy to close up again. There is a lot of opposition to this new way of doing things.
The ‘old’ system
Under the ‘old’ system, if it was suspected that if you committed a serious crime and you had money, it was easy to get bail and go home. You could prepare for your legal battle within the comfort of your own home and with your loved ones by your side.
Not fair to the poor and uneducated
But, if you were poor and didn’t have any money to post bail, you’d have to wait within that jail cell for the wheels of justice to turn. You’d have no way to keep your job, your apartment or even your kids if you were a single parent.
So much for innocent until proven guilty.
Under the old regime, thousands of Americans were just sitting in jail cells, not yet convicted, not dangerous, but just there because they could not afford bail money.
More likely to go to jail permanently
Those who were left to wallow in jail because they had no money were much more likely to receive jail or prison sentences. Why? They were desperate. They would have taken any plea deal if it could mean they can get out of jail while waiting on their trial.
These are the reasons why bail reform was advocated.
A New Strategy
A new version of getting out to fight your case omits the process of actual money changing hands. The age-old process was to be replaced with a judicial process that advocated release.
A pretrial system
A pretrial system, not based on how rich you are, would determine who is jailed or not. Only those who would flee or potentially hurt someone else will be kept in custody.
Conditions of release
Under the new strategy, those arrested for non-violent crimes would be released within 12 hours.
Should you be arrested for a violent or sex crime, you won’t be released, but rather evaluated and your crime categorized as low-, medium- or high risk. The allocation will depend on if you are considered to be a flight risk or likely to commit a similar offense.
Low-risk candidates will be set free, high-risk ones will be detained and the medium risk candidates will be assessed by a judge, who will decide their fate. The judge is to examine the person’s prior record and decide if they pose any danger to society.
The idea is that each person will be judged on his own merit – that he gets the pretrial ‘justice’ he deserves. It is a kind of local control.
If you are not dangerous, you can go home and go about your life for as long it would take for your case to be processed through the system.
Interestingly, the key backers of the initial idea of bail reform, the ACLU of California, are not on board anymore. In fact, they lobbied against it after initially supporting it. The original idea, was changed at the last minute, and it was nothing like what those who supported it and pushed it through, wanted.
One problem replaced by another
The sticky money bail system was only replaced by an equally thorny new system that will bring about racial biases, they say. The number of people locked up will not end up getting any less, which defies the purpose of the initial bail reform idea.
Categories and exceptions
The problem is that the new bill created categories and exceptions where someone can be kept in jail pending trial as long as a judge wants. Judges can now do what they like, unchecked.
Concerned parties feel that judges and county courts are given too much leeway and power with this new bill and that too many will still be stuck behind bars. These facts are backed up with actual trends: in places where the bill has been implemented, cash bails have decreased, but more people are held in jail without bond.
Perhaps it is a case of judges that don’t want to mistakenly release a dangerous criminal back into society. Perhaps they are being excessively cautious. Point is, the initial problem was not solved.
Also, the “risk assessment” tools that are being used in place of monetary bail do not promote racial equity, opposing groups say. More than 100 national civil rights organizations are speaking out against the bill.
They say it is not at all fair to decide how ‘likely’ someone is to commit a crime or to appear in court based on risk assessment tools. How can an algorithmic mechanism calculate risk factors? Some assessment tools, for instance, use demographic data. It is biased.
The ACLU wants the risk assessment tools to be independent of the judicial system. All the relevant data must be independently analyzed and the job should be given to independent pretrial agencies. This will ensure a fairer risk assessment.
But, at the moment, it all lies in the hands of the county courts and judges. None of the old problems were really fixed.
In the new system, no bail agent will be available to track someone down who has fled and is nowhere to be found. This is another, albeit minor, problem to overcome under the Senate Bill 10.
The one-size-fits-all Senate Bill 10 also doesn’t take the fact into account that communities differ and that much more variables are at stake and should be examined when determining risk.
It will be interesting to see if this new bill will withstand the test of time. Many think not.