California Eliminates Cash Bail
California is taking a major step in Criminal Justice reform by eliminating cash bail.
This week California took a step that many other states have considered but none have followed through on this week when it effectively eliminated cash bail in favor of a system that will evaluate defendants based on their danger to the public and the likelihood that they won’t show up for trial:
California on Tuesday became the first state to fully abolish cash bail, a step that backers said would create a more equitable criminal justice system, one less dependent on a person’s wealth.
“Today, California reforms its bail system so that rich and poor alike are treated fairly,” said Gov. Jerry Brown, who signed the California Money Bail Reform Act into law on Tuesday.
The driving principle of the law is that a suspect will be evaluated on the basis of risk to public safety and the likelihood of not appearing in court, rather than on his or her ability to post a certain bail amount. Those evaluations would help determine if the suspect would be held while awaiting trial or released.
The California law is part of a wave of criminal justice reforms taking place across the country. A number of states, including New Jersey, New Mexico and Kentucky, have sharply curtailed their cash bail system, but California is the first to completely dismantle it.
“This is a transformative day for our justice system,” said Tani Cantil-Sakauye, the chief justice of California and a main backer of the legislation, in a statement. “Our old system of money bail was outdated, unsafe and unfair.”
She called the new law “a fair and just solution for all Californians.”
But the law, which will take effect in October 2019, was criticized by some as giving the courts too much power.
“The bill gives a lot of power to the courts, which may be used in ways that raise concerns,” said Natasha Minsker, an advocate in the California branch of the American Civil Liberties Union, which opposes the law. Ms. Minsker also said the law “lacks protections against racial bias.”
The details of how individuals will be assessed has been left for California’s judiciary to work out. And some legislators said the state was moving too fast on a very complex issue. The bill passed the State Assembly last week by a 41-27 vote.
The law relies on the state’s Judicial Council, a body that sets the rules for California’s courts, to create the new system of pretrial assessments. Suspects will be classified into “low risk,” “medium risk” and “high risk” by Pretrial Assessment Services, which already exist in some California counties but which will be somewhat standardized by the law.
The law allows courts to detain a suspect “if there is a substantial likelihood that no condition or combination of conditions of pretrial supervision will reasonably assure public safety or the appearance of the person in court.”
From the start, it is important to point out what the purpose of bail is supposed to be and the extent to which the system of cash or bond-based bail can end up being discriminatory based on race and economic status. When a Defendant is arrested and charged with a crime, the presumption, of course, is that they are innocent until they are proven guilty beyond a reasonable doubt or until they plead guilty to an offense before a court of law after having the chance to consult with legal counsel. Given this, the presumption is supposed to be that people who are charged with a crime should not be forced to languish in jail awaiting trial when they are, in fact, not guilty of anything at that given moment. The general exceptions to this understanding, though, are where the problems set in.
First of all, if someone is released from custody before trial the immediate concern is that they will not appear for subsequent hearings and that they will seek to abscond from the jurisdiction prior to trial. As a means of ensuring this does not happen, courts adopted the practice of requiring Defendants to post bail in order to secure their release, Typically, this monetary requirement can be satisfied by working through a bail bondsman who would essentially guarantee that the Defendant will appear for subsequent hearings. In order to obtain such a bail bond, though, Defendants are generally required to post a bond that typically amounts to around 10% of the total amount of bail. If the Defendant fails to appear then the bail would be considered forfeited and the bondsman would be authorized to attempt to secure the Defendant on their own, or rely on law enforcement to find the Defendant pursuant to the inevitable Bench Warrant. Other bail conditions can include the requirement that a Defendant will be required to surrender their passport during the period the trial is pending to ensure they don’t abscond to a jurisdiction from which they cannot be extradited and requirements that Defendants awaiting trial wear ankle bracelets that track where they are. For people without assets or those who do not have sufficient ties to the community in which they are facing charges,
For people with money or other assets they can put up as security for a bond, of course, this is generally a matter of filling out some paperwork before they’re allowed to leave court on the day they are formally arraigned. For people who are poor, though, or who don’t have family members in their area who would be willing to guarantee their appearance in court, this system generally mean that they will be required to sit behind bars awaiting trial, something that can take up to a year depending on the jurisdiction and the pre-trial status of the case.
The second purpose of bail is one that seemingly runs against the presumption of innocence I noted above. Specifically, there are some situations where a Defendant will be considered ineligible for bail if they are charged with certain crimes or if they have a criminal record. In nearly every jurisdiction there are some crimes, such as murder and rape, for which bail is simply not possible at all. Additionally, a Defendant with an extensive criminal record or a history of jumping bail in the past will generally be denied bail. While this does arguably go against the whole “innocent until proven guilty” presumption, the existence of such rules is understandable. Releasing a Defendant charged with a crime such as murder, or one who has a long criminal record or a history of not appearing in court would obviously pose problems that are best avoided, and of course someone who is already being held in custody on other charges or convictions should not be released into the general public.
Taking this background into account, the California law isn’t really a major change since it takes into account the questions of danger to society and the likelihood of appearing for the trial that a Judge is supposed to consider when setting bail under the system that exists in most states today. Most significantly, perhaps, there’s the fact that most people charged with misdemeanors, which are generally crimes punishable by a year or less in jail, would not have to go through the same risk assessment that persons charged with a felony would be subjected to. Additionally, as a general rule, the new law requires the prosecution to produce the evidence or argument in favor of their argument that the Defendant should be held before trial.
One thing that is unclear about the California law is how exactly the new system would secure a Defendant’s compliance with Court orders regarding appearing in Court for future proceedings. One advantage of the cash bail system notwithstanding its faults is the fact that it makes clear to a Defendant that failing to appear for trial would have a serious impact not only on them individually but also potentially on family members or friends who may have assisted in the posting of either cash or a bail bond. Without that incentive, there is one less incentive on a Defendant facing serious charges to skip town. Presumably, these issues will be dealt with by the judicial council that will be charged with developing the rules for the new system before it goes into effect next year.
Jazz Shaw is skeptical of the California reforms:
Some people who have no resources at all to pay bail either wind up stuck in a cell on relatively minor charges or set loose with a bond they could never hope to pay back, perhaps disappearing. At the other end of the scale, there are white-collar crime cases where the suspects are vastly wealthy and no amount of bail is too high of a bar for them. Yes, there are problems with the system.
But at the same time, repeat offenders who already have bench warrants aren’t likely to improve their behavior and start showing up for trial over the fear of violating a court order. It’s the same as the fact that gun laws don’t prevent people from illegally purchasing guns if they are already willing to commit gun crimes. It’s just human nature and common sense.
Also, this new system is removing all bail guidelines and dumping the full responsibility of “guessing” whether the accused is dangerous or a flight risk on the judge. Consider the judge who decided to grant bail in that New Mexico compound case where an extremist was teaching children to shoot up schools. Not all judges are created equal and we do need guidelines to keep the worst of them in check.
As I noted above, the new California system appears to take many of these concerns into account. Under current bail procedures, for example, a repeat offender who has or had outstanding bench warrants, which would mean they have a history of not appearing in court when required to would most likely not be considered eligible for pre-trial release. Additionally, the current bail system already does place much of the responsibility for determining whether or not a defendant is a danger to the public or a flight risk on the arraignment judge who first hears the case. Quite often, they are required to make at least an initial determination with almost no knowledge about the Defendant. The new system changes that by requiring a pre-hearing clearing process that would make information regarding a Defendant’s past criminal record available to the Judge, Prosecutor, and Defense at the same time and thus allow for a better-informed bail process. This likely will mean that people charged with felonies in California might spend an extra day or two in jail before a bail hearing, but it seems like a minor price to pay in exchange for a system that is fairer and that actually aims at the issues that ought to be looked at when it comes to determining whether or not someone should be detained before trial.
Reality: cash bail has an overtly, demonstrable, racist impact in this country.
It also completely screws over poor people – the very people most likely to get targeted by urban police officers unfairly.
Further, some jurisdictions require that a portion of the bail is auto-forfeited – even if they show up – to help fund the courts and system. You can guess how often bails are set and how they tend to be larger in such jurisdictions.
People are literally dying and developing mental disorders due to cash bail. It can’t be abolished soon enough.
I’m skeptical, too, of criminal justice reforms coming out of CA. They’re usually terrible.
So Jazz Shaw’s objection is that repeat offenders who already have bench warrants won’t give a damn about one more court declaration? By that logic, what makes bail are more reasonable restriction other then they likely can’t make it? If a bench warrant’s no biggie to you then I doubt screwing over whomever gives you that money is a major concern either. Frankly, if you’re willing to run and risk a bench warrant, you’re willing to say “^%&$ it” thousands of dollars meant to “convince” you to stay.
The new system sounds much more reasonable: we’re trusting you to show up as a rational, non-dangerous person presumed innocent and will comply as such. If you don’t met those criteria (dangerous, non-rational or just a plain flight risk), your presumption of innocence stands but your likelihood of showing up in court for its defense becomes a matter for the courts to restrict your ability to flee. Money should have nothing to do with it – compliance should be the basis. If compliance is a concern, why would you not push such a trial to the front of the docket and hold them while letting less urgent cases with compliant defendants fall back a bit? They’re clearly not going anywhere…..
I’m somewhat on this but I fear it will collapse the first time someone out on the new system commits a horrible crime. We live in an era where laws are written in response to sob stories.
Remember Kathy’s First Law: Everything has a downside.
That said, it’s an interesting development much worth keeping an eye on.
In my work I deal with something similar. the company I work for sells food to government agencies (and a few others). the contracts awarded each year include a provision for a refundable guarantee equal to between 5%and 10% of the value of the contract. The guarantee can be cashed if the contract is rescinded (with causes for that spelled out in the contract). Said guarantee can be either 1) a deposit to the agency’s account, 2) a cashier’s or certified check, or 3) a bond backed by a bond company.
The first two options make money unavailable. The third requires a non-refundable, but much smaller, payment. That’s the option most often used.
Now, the bond company doesn’t want to pay out any guarantees, right? So they will fight any agency trying to rescind the contract. This may involve a court of law, but also negotiations on the side to resolve the matter without rescinding the contract (and with costs paid by us as suppliers).
One can argue that the profits made by the companies who issue bonds, means the bonds and guarantees are largely unnecessary. The contract may include a commitment by the company to pay an amount of 5% of the value of the contract as a fine or penalty in case of rescission, after all.
Much the same argument can be made as regards bail on criminal justice matters. What percentage of defendants fail to show up in court? Of those, what percentage are presented to court by the bail bond companies? Could a similar, or higher, percentage of the latter be brought to court by a state agency?
It’s worth trying. The criminal justice system is not a jobs program for bail bond companies.
@KM:
If you’ve never been caught up in the criminal justice system, you can not know what a 24/7 mindfuck it is. Not knowing what the future holds, is almost as suffocating as being in prison. People will plead guilty to something they are innocent of just to get it over with, whether they are in jail or not.
@Kathy:
It is to hear them tell it.
In my state, single drivers can purchase access to the carpool lanes – it is a varying fee depending upon how bad traffic is that day. Essentially, if the $5-6 means nothing to you, then you get the benefit of passing everyone else up on the freeway.
Money does not motivate people equally. As I have accumulated more of it, I care less about it. Imagine how a drug kingpin making tens of thousands of dollars a week feels about a $100,000 bond.
This is a great experiment.
I can see this going terribly. Or well.
There will definitely be some situations that will make everyone roll their eyes, and which Fox News will promote the crap out of when they need counter programming to the Trump administration. And the Willie Horton ads will write themselves.
But the current system is racist and broken.
This I s a good experiment.
I have a suspicion that court appearances for minor offenses will plummet, as people start treating it more like traffic court and just screw it up because they don’t take it seriously, or mistake an arraignment for a trial and think they are done.
But, processes can be adjusted and that’s something that can be fixed. Presumably this was though through by smart people and they have an initial process that they think will address this. I do hope they aren’t setting up a lot of people to screw up their lives even more by failing to appear.
@Hal_10000:
This is entirely likely. And it’s worth noting that, rather than sob stories, laws are written in response to moral panics. As such, they disproportionately happen in reaction to a case like the one you describe. Usually, that hangs on the “victim” of the story being middle-class and white.
Bail reform is so overdue because people don’t care about the sob stories of people who are accused of a crime. Or worse, in the case of Matthew Charles, convicted of one. Welcome to criminal justice in the US.
In terms of Jazz Shaw’s points, we should be skeptical about this law, but not for the reasons he gives. The problem is this system’s reliance on proprietary risk assessment tools that are all black boxes. The hypotheticals he sets us — “repeat offenders who already have bench warrants aren’t likely to improve their behavior and start showing up for trial over the fear of violating a court order” — will not make it through one of those assessments.
The problem is that studies have shown that a lot of low-risk people are deemed “high risk” most likely due to factors like race (i.e. propublica has documented cases where the only significant differentiator between a suspect released on their own recognizance and one classified by the same system as a significant risk was race). California’s approach tends to give risk assessment tools a LOT of power and makes it very difficult for defense attorneys to mount a counter-argument (because they cannot know the specific reasons for someone being deemed a risk.
That said, the intent of this law is good. The devil will be it application and we need to wait for the data on that.
To be clear: I would be much more supportive of this law if risk assessment tools were fully transparent and defendants had a right to contest their findings.
[Disclosure: I currently work at a non-profit in the criminal justice data transparency space. While we do not advocate for bail reform, my line of work has brought me into contact with a lot of people involved with the bail reform].
I’m probably the only person here who’s had to make bail in California. They held me on 60k, the inflation-adjusted equivalent to a quarter million today. The other guys couldn’t believe it, kept asking me if I’d murdered a judge. I eventually made bail and as @KM: said above, I didn’t even hesitate over the money, I jumped.
To muddy the picture a bit: I jumped bail in large degree because the bail was so high. It was disproportionate, which was like spraying rocket fuel on my paranoia.
I was obviously a flight risk: I’d lived all over the country and overseas and had no roots in the community. But does that mean every Army brat is by definition a flight risk? Do we want a system that rewards sticks-in-the-mud while punishing the more adventurous?
The cash-bail system is crazy unfair to the poor and working class, but the new system would be unfair to anyone who’d ever traveled out of the state.
“dumping the full responsibility – on the judge” Yes, and that could be very well a problem. I have long said that judges need to be held accountable if they let some hoodlum out who proceeds to kill or injure. They may get over cautious and keep more people locked up. There should be some guidelines that the judges themselves can get together and come up with. Obviously people with traffic tickets and unpaid library fines should not be held. Failure to appear seems to be more common these days. I wonder how the judges will handle those cases. If this can speed up and clear out the court rooms, well and good.
“Sob stories”?: people do get hurt or killed by vicious criminals, gang members, terrorists, serial killers, bank robbers, and kidnappers. People suffer and go through grief. Let’s not forget that or minimize it. Look at the casualty numbers in some of the cities; and those are in a typical weekend. I know that some violent crime numbers have declined, but that is little comfort to those who are affected weekly.
This Mueller investigation is not helping the common folk who are crime victims. He is working for the powerful political groups’ agenda.
@Tyrell:
You’re getting dumber and more openly obnoxious. Can you go back to pretending to be a loveably confused old fart? Because we don’t really need another idiot Trumpie.
@mattbernius: Most of the problems with a racist assessment of flight risk are in the current system as well.
A question I would ask is whether this makes those flaws easier or harder to address in the future. I think this makes it easier, as it centralized the decision making into something that we can test.
The systems may be a black box to you, but they aren’t so much of a black box to the people who designed them. They can be changed, and this affects a global change.
The minds of judges are black boxes to everyone, including the judge. They cannot reliably be changed, and requires changing a lot of black boxes.
I would feel better with a judicial override and a bit more transparency. I expect this will come.
@Gustopher:
There’s a really simple technological solution – fit the non-violent accused with ankle bracelets with GPS locators and release them all. Pretrial confinement should be based on threat to the community, not on likelihood of appearance. This cuts the numbers severely and makes it more possible for courts to do a proper assessment of risk, which should be based on the type of crime, record and depth of evidence.
I have long said that judges need to be held accountable if they let some hoodlum out who proceeds to kill or injure.
We need to amend Our Great Charter to require that all The Judges, both of the supreme and inferior Courts, and the Judges in every State shall be half-breed Betazoids to facilitate the mind reading of suspects so only the guilty are detained.
Who want’s to be the one to wear Manafort’s used jewelry?
“The Virginia probation officer told the judge that she wouldn’t have access to tracking data from the D.C.-based bracelet, hence the need for a second monitoring device.”
@Mister Bluster:
No need for that. Just draft precogs to determine such things.
@Gustopher:
Just a clarification before anything else, risk assessment algorithms evaluate both flight and reoffense (committing another crime) risk.
And yes, to your point they are being used in many locations beyond CA. That said, this is only going to further their adoption.
But the problem is, manufacturers require outside pressure to change. And the nature of the system makes them hard to monitor and test for outsiders. Further there is a inherent system bias towards being conservative. There is no way to prove that someone denied bail would not have been a risk. So that in itself created issues.
That’s before we get to how easy it is on a surface level to statistically dismiss certain forms of bias within the CJ system.
This is different than other algorithms that can be easily externally validated.
Generally speaking access to usable Criminal Justice data in this country sucks to begin with (even with Freedom of InformationAct Requests). CA data is especially hard to get at (we are in the middle of that right now). Trying to get good data about these types of Black Boxes is all but impossible.
Further the system leaves little recourse for review and no option for someone classified a risk.
You are right that an individual can be a black box. But at least that single biased judge is only ruling on a small set of people. The risk assessment algorithms is dealing with EVERYONE within a jurisdiction.
And the nature of our elected judicial system leaves very little incentive for most judges to go against the algorithm.
Hopefully I am wrong. But a lot of public/indigent defenders and bail reform advocates I have been talking with are really leery of this approach.
@Michael Reynolds:
Unfortunately, that is a cost prohibitive solution, even if you restricted it just moderate and higher flight risks (though monitoring companies could only dream of such a boon).
Honestly most people who fail to show up just screw up or are literally lost by the system (i.e. don’t have the correct contact info on record) and don’t get a scheduled date. There are some really interesting text messaging apps being explored that may cut down on no shows in a much more cost effective way.
@matt bernius:..that is a cost prohibitive solution,..
It is cheaper to keep arrestees in jail? I did not know that.
@Michael Reynolds: I’ll second your proposal on Tyrell. Can we bring it to a vote now? All in favor…
@Michael Reynolds: I actually thought about that, bot having been fitted with a GPS Tracking ankle bracelet, I wonder about the power source. Most of my electronics want to be plugged in and charged on a regular basis.
I suppose it can start chirping like a smoke alarm and call the police when it is low on power, but then suspect it can be disabled with water. And how often does your cell phone loose reception?
But, we are also likely dealing with technology more akin to an old fashioned beeper than the supercomputer in your pocket that is an iPhone. Those things were little tanks.
@matt bernius:
Wait, is California developing the black box, or are they contracting out to vendors? We should not be having private companies involved in the judicial system and determining who can and cannot be released.
This is a matter of determining the right metrics.
There should be an expectation that the number of people who skip heir court appearance would not go appreciably up or down from the current system. Further, the percentage of people who are incarcerated before trial should be about the same.
If the percentage of people skipping out goes down, that would be as much of a failure as if that percentage went up. (If compliance goes up, and the number of people incarcerated before trial goes down, we would be happy, a pleasant surprise)
I would aim for a metric of “lowest number of people incarcerated, while keeping the compliance rate the same”.
I remain cautiously optimistic about this experiment, but am kind of glad I don’t live in California… it could go very badly.
@Tyrell:
We know that the Russians have interfered in the election (a crime), and we suspect it had enough of an effect to change the outcome (the election was close enough that give or take everything was a deciding factor). At the very least, it has undermined our faith in our electoral systems and our entire government.
Every man woman and child in the United States was a crime victim. Are they not common enough for you?
And, if the President or his campaign was involved with it — even as accomplices after the fact — they should be prosecuted.
@Mister Bluster:
As in CJ it all depends on numbers and other things (including the local we are talking about, what happens in LA is very different than what happens in Modoc county or Imperial).
The reality is that ankle monitors have a lot of costs, including material (purchasing, maintaining, and replacing units) and service (licensing the software and support) — not to mention the internal resourcing to support the program.
Depending on the contract, all of that, in total and at scale, can be greater than housing prisoners awaiting trial (especially since jails have to staff regardless of whether or not they have people in them).
To be clear, I am NOT defending cash bail or housing people. It’s just tech solutions tend to often be focused on getting the companies who provide them rich.
Though I work at a tech-related criminal justice (non-profit) organization — so take what I say with a grain of salt.
Arresting and jailing people should be done to keep other people safe, not as a way to fund the government and contribute to the prison-industrial complex…
@Gustopher:
Oh Gustopher, I have bad news for you. There is state aspect of the CJ system that doesn’t have significant involvement from private companies.
First, I cannot speak to CA’s system. The reality is that every criminal justice (CJ) system differs across state (and frankly often across counties within states), so as I’ve discovered in CJ in the US, there are no givens.
Because of that, there is no single approach to risk assessment systems. My understanding is that most are quasi-public/private. They are often based on proprietary algorithms based in the commercial case management software used by either law enforcement (sheriffs), corrections, or the courts (depending on the local). There are often local tweaks made to the parameters — but no, in most cases the agency involved doesn’t necessarily know the contents of the algorithm. In some cases they have the resources to dedicate to studying that, but those places, from what I understand, are outliers.
I don’t know how CA is going to be implementing their Risk Management system. Hopefully, it will be “roll your own” — however, I honestly don’t know how that would work from my understanding of the data infrastructure of CA counties.
Actually, the metric should be the lowest number of people incarcerated, while increasing compliance.
The reality is that because of the conservative nature of law enforcement, we are most likely incarcerating a significant number of people who, with the right support, would comply. So a fair system should be able to lower one while raising the other (within reason). Eventually, compliance would even out. But most experts believe compliance can be a lot higher than it currently is.
@mattbernius:
That should have read “no state aspect” (though honestly it’s no aspect, period).
I fail proof reading.
@matt bernius:
This happened to my youngest in Baton Rouge. Neither he nor his lawyer were notified of a hearing date. They sent a “criminal apprehension team” out for him (for all intents and purposes a SWAT team) He was taking out the garbage and caught one of them sneaking around a corner of his apt building.
“Ummm, can I help you?”
On Ankle bracelets: ‘Digital shackles’: the unexpected cruelty of ankle monitors
Read the whole thing. They have their place but as with all things in the criminal justice system, their use can be abused, and as soon as someone can make a profit off of them, they are.
@Tyrell:
It’s not supposed to – it’s supposed to investigate, not make your life better. Why in the world would you think someone investigating Crime A would “have to help” someone else who was victim of completely unrelated Crime B? Does that mean murder investigations should only go forward if they benefit the common folk suffering from auto theft? Crimes should get a pass if they don’t benefit someone on Main St, East Bumfuck?
Talk about being a snowflake! Even your trolling is suffering lately
@OzarkHillbilly:
Sorry to hear about your son’s experience. It’s all too common. I’ve only been with my new gig for about 6 months, but the amount I’ve learned about the current state of CJ data in the US has deeply shaken my trust in aspects of our system.
I had forgotten to mention this part in my earlier reply. And remember that $840 a month is being paid by someone who has *yet* to be convicted of a crime. I can’t speak to that individual’s circumstances, but all too often that type of a decision is made to ensure that they can keep their job while awaiting trial. The alternative is to go to jail to await trial, lose your job (apartment, kids, car, etc), and if you are found innocent, have to rebuild your life from the ground up (with the stigma of a criminal trial in your history).
@mattbernius:
Fortunately in his case it was more humorous than anything else, but the risk of really bad things happening because of a simple misinterpretation on their part really pissed me off. It was only for a simple DWI at that.