Although California’s historic move to eliminate money bail is on hold pending a voter referendum in just under a year, good work by forward-looking attorneys and activists is helping to ensure a more just criminal justice system now.
The reformers’ first hurdle has been to expose the deep unfairness of the bail system. They won over lawmakers and the governor more than a year ago with SB 10; if it takes effect following a statewide vote next November, the bill will end the system under which people arrested and accused of crimes can gain their release from jail before trial by depositing cash with the court or — as is more often the case — paying a nonrefundable fee to a bail bond agency.
The problem, of course, is not the notion of pretrial release itself, which ought to be the presumption for everyone facing charges except for a very few who pose an obvious danger to would-be witnesses or other parties, or someone likely to flee and not return for trial. The problem is that the bail system makes poverty a barrier to release. It makes little sense to lock up people with too little money to bail out while letting their better-heeled counterparts buy their freedom.
Now the case has to be made to voters, because the bail industry is fighting back. The Times reported in October on the results of a poll showing that Californians are deeply divided over whether to eliminate money bail.
It’s not a surprise. Bail is an integral part of American popular culture. Television shows, movies, even pop songs are replete with stories of bail and its place in the process. You get arrested, you put up money, you get out. If you show up for your hearings on time, you get most of your money back, and if you don’t, you don’t.
But the pop narrative leaves a lot out.
Frank talk from defense lawyers, especially public defenders, is slowly filling in the gaps for Californians who have so far been spared the misfortune of going through the process.
They make their case to the public in testimony at city council and board of supervisors meetings, in panel discussions, in articles and op-eds. They speak of families that impoverish themselves to put up bail money or, more often, to try to make ends meet without their chief breadwinner because he or she is in jail pending trial, unable to pay a bail bondsman. And don’t forget: That incarcerated breadwinner has merely been accused of a crime, not convicted.
In jail, the client can offer little assistance in preparing a defense, can’t keep a paper file, can’t keep notes, can’t talk with family without being recorded, can’t walk the lawyer through the alleged crime scene or knock on the doors of alibi witnesses.
At a Dec. 6 program presented by JusticeLA and the Vera Institute of Justice, a defense attorney added some details that few people not involved in the system would guess. In L.A., jailed defendants who have to be at court in the morning are woken up at about 1 or 2 a.m., eat a minimal breakfast and wait in line for several hours for their transport to the courthouse, then are transported back to jail in the evening for just a few hours of sleep before having to do the whole thing all over again. They are exhausted, and look it.
Their counterparts who are not in custody may spend the night with their families, get a full night’s sleep and a good breakfast before their court appearances. Meanwhile, if appropriate, they may have begun necessary treatment programs. They can take classes, keep jobs, tend to their personal health — all things that can have an effect on a judge’s decision when considering whether the defendant is worthy of another chance, or a diversion program or other avenue out of the criminal justice system.
With the bail system still in place, some programs have taken a creative approach to lessening the burden.
The Bail Project, a nonprofit organization that among other things puts up bail money on behalf of incarcerated people, has been operating at the Compton Courthouse for more than a year. It is now expanding to Van Nuys. The project connects defendants to social services and makes sure they show up for their court hearings. Results are good: Similar programs in other jurisdictions have produced rates of court appearances at more than 95%, matching or exceeding appearance rates for people on bail. That demonstrates that a money stake is not the single, indispensable way to ensure someone shows up at court.
Meanwhile, the clock is ticking down to Nov. 3, 2020, when the bail referendum will share a crowded ballot. Pretrial justice requires proceeding simultaneously on two fronts — ratification of the bail elimination bill, and better justice before trial for defendants with or without money.