California lawmakers next year will make it a top priority to reform the system through which judges award criminal offenders bail, saying courts across the state are punishing “the poor for being poor.”
Assemblyman Rob Bonta and Sen. Bob Hertzberg said they plan to fire the first salvo Monday, when lawmakers descend upon the Capitol for the start of the 2017 legislative session. They will introduce bills stating the Legislature intends to enact laws that will reduce the number of people detained before trial and address the racial and economic disparities in the bail process.
The details of upcoming legislation are still under deliberation, but Bonta and Hertzberg said they have assembled a broad coalition of organizations and lawmakers from both sides of the aisle to tackle what they consider to be one of the most significant pushes — and likely one of the hardest battles — of the year.
Bonta, an Oakland Democrat, said he sees “unprecedented” energy and momentum on the issue, but predicted “a heavy, strong resistance from the bail industry and insurance companies.”
Debate over bail reform has simmered at the national level in recent years and has often been waged in court, with cities and counties across the country facing lawsuits over policies that some legal experts say have turned jails into modern-day debtors prisons. At least two of those cases — against statewide practices used in San Francisco and Sacramento — have been filed in federal courts in California.
Under state law, bail is set when a person is arrested according to a county fee schedule and depends on the gravity of the alleged crime. Offenders must post the amount upfront, or pay a 10% fee to a bond company, before they are released.
Those who can’t afford to do so either can remain incarcerated up to an additional 48 hours before they are formally charged and arraigned. A judge then sets the conditions for release before trial, weighing such factors as whether the defendants pose a flight risk or are a threat to their community.
Those conditions typically include bail, and lawyers and legal experts say the rules on how high that monetary amount is set vary by city and county, often allowing courts to keep people in jail based on their inability to pay their fees.
“We have to make the criminal justice system more just,” Bonta said. “When you have a system that is making decisions simply and solely based on a person’s wealth, something is fundamentally wrong and that is simply not acceptable.”
Bail reform legislation has failed in California in the past, often because of tough opposition from bondsman companies that argue the current system allows defendants access to their civil liberties.
But lawmakers said they could point to successful reforms in Washington D.C., Kentucky and New Jersey. And they have studied jurisdictions within the state that have developed “risk-assessment” models, which allow court and pretrial staff to use data and other evidence to determine whether a person should be released.
Hertzberg (D-Van Nuys) said Republicans are suggesting interest in reform. “Now you have a whole host of groups on both sides of the aisle looking at the cost and fairness of the system,” he said.
Modernization of the pretrial system is urgently needed in California, which relies on pretrial detention at much higher rates than other states, according to the bills to be filed Monday. About 63% of people in state jails, or 46,000 inmates, had not been sentenced in 2015, according to the Board of State and Community Corrections.
That comes at a housing cost to the state of roughly $100 per inmate per day in most counties, or roughly $4.6 million a day.
It also placed an expensive burden on families. When people cannot afford to pay for their release, they can lose their housing, lawyers and reform advocates said. Even three days in jail can result in a loss of wages, jobs and family connections, leaving some defendants 40% more likely to commit crime in the future, studies show.
“The problem we see with money bail is that it is a price tag on freedom,” said Phil Telfeyan, executive director of Equal Justice Under Law, which filed the legal challenges over bail reform in California. “Those who are rich get to pay their way out and those who aren’t have to languish in jail.”