• Patrick Santos, Esq.

The End of Cash Bail, Bail Bondsmen, and Socio-Economic Discrimination: Good or Bad Idea?

Bail Is a "Tax On Poor People In California" ~ Gov. Brown 1979

On August 28, 2018, California's Governor Jerry Brown signed a sweeping bail reform bill, making California the first state in the union to end cash bail. Gov. Brown was Gov. Brown 40 years ago (Brown has previously held the position from 1975–1983), and even then he called for reform of the bail system, decrying it a "tax on poor people in California."

"California Money Bail Reform Act"

The "California Money Bail Reform Act" goes into effect in October 2019, but moments after signing it, Gov. Brown echoed his point from 40 years ago, stating "today, California reforms its bail system so that rich and poor alike are treated fairly." Sen. R. Herzberg, a co-author of the bill (a Van Nuys local) said in a statement, "California will continue to lead the way toward a safer and more equitable system."

October 2019 Spells Cash Bail's Death Knell

After October 2019, arrestees won't be putting up money or even borrowing it from a bail bondsman to see their release. Instead, the courts will decide who stays in custody pending trial, each locally making their own decisions based on an algorithm.

How It Works - Risk-Assessment Algorithm

For starters, nonviolent misdemeanor arrestees will be released within 12 hours (unless you have a warrant or are on probation). Whereas arrestees charged with violent felonies appear to be ineligible for release. Other arrestees will be scored based on a variety of factors, including but not limited to the seriousness of the crime, the likelihood of recidivism (doing it again after being released), and how likely they are to show up for their future court date, which may include technology like GPS tracking ankle bracelets. This risk-assessment algorithm is still unclear.

The law vests its wisdom in the Judicial Council of California, the rule-making arm of the California court system, consisting of thousands of attorneys across the state. The Council will likely publish new Rules of Court, which traditionally make non-exhaustive laundry-lists of considerations. The Judicial Council carries out its mission primarily through the work of its advisory committees and task forces. The Chair of the Council (Chief Justice) may appoint advisory committees and task forces, comprising judges, court officials, attorneys, and members of the public, to advise the Council. When it comes to writing laws, lawyers are actually very good. Each of California’s 58 Counties' Superior Courts will then be responsible for implementing and developing their own risk-assessment systems.

More Discretion to Judges? Really?!

Opponents are concerned the new law will give too much power to judges, what the law calls "discretion." Not for nothing, but many judges are former prosecutors. Critics abound, but regardless of any flaws, the bill accomplished what had been its central aim - to junk the bail system. Bottom line, if more defendants are locked up, it won’t be because they’re poor and can’t raise bail. “Currently we have a system that punishes people and takes away their liberty simply because they have less money. That’s not fair,” Sen. Hertzberg (D-Van Nuys), the bill’s lead author said. “It’s perverse,” Hertzberg said.

A Good Start

Three years ago, the Public Policy Institute of California estimated that the median bail amount in this state was $50,000, which is five times higher than the rest of the country! If it were going to start somewhere, California needed it the most. Not to mention, this spells the end to the state's bail bond industry, which is likely to present a legal challenge. Suffice it to say, Aladdin is really upset.

~Patrick Santos is an attorney in Southern California since 2009. State Bar No. 265982


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