State lawmakers have unveiled an ambitious plan to reform how counties in California set bail for defendants while they wait for their cases to be resolved or go to trial.
New language added Friday to bills by Assemblyman Rob Bonta (D-Oakland) and Sen. Bob Hertzberg (D-Van Nuys) would prevent criminal defendants from having to post money as a condition of release from jail and would shift some power from judges to pretrial services agencies to assess the risks they would pose if allowed out in the community.
Under the legislation, each county would have to establish its own pretrial services agency to track inmates, remind them of court dates and develop “risk-assessment” tools to determine whether a defendant should be released. The programs, in use in other states, allow court and pretrial staff to use data and other evidence to determine whether a person is a risk to the public or likely to flee their charges.
“The bottom line is we are trying to get to the point that the determining factor for pretrial release is not the size of your wallet, but the nature of your risk,” Hertzberg said. “Are you a risk to society? Are you a public safety risk?”
In California, where at least two federal lawsuits over bail practices are pending, 2015 data from the Public Policy Institute of California found more than 60% of people in county jails were awaiting either trial or sentencing.
When a person is arrested, judges set bail according to a county fee schedule based on the gravity of the alleged crime. Defendants must post the amount upfront or pay a 10% fee to a bond company before they are let go.
Those who can’t afford to do so 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 a defendant is a threat to his or her community.
Under the proposed legislation, Bonta and Hertzberg said the money bail system would not be completely eliminated, and judges would still have final discretion to use it in compelling cases.
Defendants charged with violent crimes or certain misdemeanors, including some domestic violence offenses, would continue to be held in jail until their arraignment before a judge. Defendants who commit a crime while they are released when their case is pending would be subject to a hearing.
But the legislation would require that bail be set based on a person’s income.
“We didn’t want to have unbridled judicial discretion,” Bonta said. “We wanted to provide policy guidance to help determine where that discretion is exercised and how.”
The bills are likely to face tough opposition at the Capitol, where legislation requiring counties to use risk-assessment tools when preparing pretrial reports for inmates has failed in the past.
Significant questions remain, such as the cost of the proposed pretrial services to provide inmates with support and monitoring, including the use of GPS devices. And bail bonds companies point to the potential cost to taxpayers. Other opponents argue money bail works, protecting the community while allowing defendants to fight their cases.
Wendy Zamutt, who owns a bail bond business in San Diego, said she is trained to screen her clients and provides support to every one. But the laws must be strict on criminals, she said.
“They are not people who forgot to bring their library books back on time,” she said. “We can’t allow these people to return on a promise. It doesn’t work. It has never worked.”
Criminal justice advocates counter the proposed laws could lead to long-term savings from keeping fewer defendants in jail. Incarceration expenses vary widely across the state, but counties spend an average of more than $100 per day to jail each defendant, according to the Public Policy Institute of California.
Mica Doctoroff, a legislative advocate with the American Civil Liberties Union of California’s Center for Advocacy and Policy, said the money bail system is not cost-effective and fuels poverty and racial disparities in the system. It “is not working for California,” she said.
Then there is the human toll, Bonta said. Time in jail can cost someone their car, their jobs, their kids.
“Many will take pleas when they shouldn’t have been detained in jail in the first place,” he said.