In some states, if you get arrested and are hauled into court, you will undergo an assessment to determine how likely you are to show up for trial. You’re given “pretrial services,” which can consist of anything from probation-like supervision to a text message reminding you when it’s time to come in. In the extraordinary event that your assessment and your judge find it likely that you will run instead of coming to court, you may be held in jail pending trial, but that’s rare. Jails are for punishment and public safety, cell space is limited and costly, and locking up people who haven’t yet even been convicted of anything or deemed at high risk of committing new crimes is a waste of resources.
That’s well understood in the federal courts, which have these sorts of pretrial services, as well as New Jersey, Kentucky, Illinois and some smaller jurisdictions.
But not in California. Here, when you make your first appearance in court, a judge will look up your charges on a “bail schedule” — a list drawn up by each superior court’s judges that prescribes bail amounts by criminal category — and set bond accordingly. If you have the money, you are released, regardless of your likelihood to flee. If you don’t, you sit in jail — again, regardless how likely or unlikely you are to skip town. California’s money bail system is a colossal mismanagement of resources.
The bail system also improperly uses your personal wealth as a basis for determining whether you remain locked up or go free before trial. People with money for bail can go home, keep their jobs, keep their families intact and actively fight the charges against them. People who stay locked up because they have no money for bail can’t go to work, so they are likely to lose their jobs, and they can’t care for their children — so they may lose them as well. The pressure of those losses makes them more likely to plead guilty in order to get out, even if they are innocent. Their time in jail and away from home makes them more likely to get into further trouble with the law, regardless of whether they were guilty of the original charges.
Two virtually identical bills would finally catch California up with those jurisdictions that rely on smarter, cheaper, more effective, more just and more enlightened ways to deal with people accused of crimes. SB 10 by Sen. Robert Hertzberg (D-Van Nuys) and AB 42 by Assemblyman Rob Bonta (D-Oakland) would require courts to use risk assessments and pretrial services instead of bail schedules. This is the right approach, and the Legislature should embrace it.
Despite the success of no-bail or limited-bail programs, the bills are controversial — because they threaten the stranglehold that the bail bond industry has on the state.
No doubt, it’s a lucrative business. In Los Angeles, a person taken to jail after being arrested is directed to a phone that is flanked by ads for bail bond companies, each of which will require a payment equal to 10% of the defendant’s bail. If your bail is $50,000, for example, you must pay the bond company $5,000, supposedly to secure your court appearance. But even if you show up, even if you’re acquitted, you won’t get any of that money back.
If you flee, the bond company is supposed to pay the full $50,000 to the court, or else track you down — like TV’s “Dog the Bounty Hunter” — and present you to the judge. But California courts ask for the forfeited money rarely, if ever, so the bond company rarely bothers to track down its clients.
With so much at stake, the industry has pulled out all the stops to defend itself against both bills. At a committee hearing, bail agents argued that either bill would cost California $2 billion.
That number is simply not credible. Certainly there would be some start-up costs — pretrial services are not free — but they must be compared with the enormous costs of unnecessarily occupying jail space that ought to be reserved for people convicted of serious crimes.
For example, Santa Clara County bucked the California bail system in 2012 and began its own pretrial services and assessment program. The single-year cost is between $6 million and $7 million — but the savings from supervising non-convicted defendants in their communities instead of jail is around $60 million.
The cost argument just doesn’t fly. Lawmakers should move the two bail reform bills forward and start delivering better justice and a better return on its criminal justice budget.