Capitol Journal: Why we need bail reform: California shouldn’t be requiring a payment for freedom


California is moving toward ending its unjust pretrial bail system, a four-decade effort begun by Gov. Jerry Brown when he was governor the first time.

Brown actually started crusading for bail reform before most current Californians were born.

In his 1979 State of the State address, Brown called the California bail system an unfair “tax on poor people [who] languish in the jails of this state even though they have been convicted of no crime. Their only crime is that they cannot make the bail that our present law requires.”


The governor urged the Legislature to find “a way that more people … can be put on a bail system that is as just and as fair as we can make it.”

The Legislature ignored him. If anything, relatively fewer people are able to make bail today than 40 years ago.

But the old speech excerpt is still alive. It was resurrected recently by a former top aide whom the governor appointed as a judge during his first term. He’s J. Anthony Kline, Brown’s legal affairs secretary in the 1970s and now presiding justice of the 1st District Court of Appeal in San Francisco. Kline used the excerpt prominently in a landmark opinion he wrote that almost guarantees the enactment of a bail overhaul.

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The ruling involved Jeffrey Humphrey, 63, a retired shipyard worker and lifelong drug addict. There’s nothing particularly sympathetic about the guy. He was charged with mugging a 79-year-old man who uses a walker and lives in the same apartment building. Prosecutors say the suspect slipped into the victim’s room, threatened to put a pillow case over his head, was given $2, stole another $5 and lifted a bottle of cologne.

Bail was assessed at $350,000. The standard 10% fee to a bail bond agent would have cost $35,000 out of pocket. No way. Humphrey was locked up for months pending trial.


The three-judge appellate court unanimously ruled that “by setting bail in an amount it was impossible for [Humphrey] to pay,” it in effect amounted to a violation of “due process protections” guaranteed by the Constitution.

The judges said the suspect was entitled to a new bail hearing at which the court must consider “his ability to pay” and “nonmonetary alternatives to money bail.”

“The problem this case presents,” the panel observed, “stems … from the enduring unwillingness of our society, including the courts, to correct a deformity in our criminal justice system that close observers have long considered a blight on the system.”

“Legislation is desperately needed,” the judges asserted.

Next up was state Atty. Gen. Xavier Becerra. The Democrat announced last week that he’d let the appellate ruling stand and not appeal it to the state Supreme Court.

“I am doing what I can to add to that movement of bail reform,” Becerra told reporters. “Today’s bail system doesn’t make you safer because if you’ve got the money and you’re dangerous, you still get out.”

“Bail decisions should be based on danger to the public, not dollars in your pocket,” the attorney general added.


This is one of the few issues that separate the leading Democratic candidates to replace Brown, who will be termed out after this year.

Lt. Gov. Gavin Newsom is a loud advocate for bail reform.

“Cash bail insidiously exacerbates our criminal justice system’s class and racial disparities by creating a cascade of devastating effects for poor people and their families who often lose jobs, homes and even their children before a court even considers their guilt or innocence,” Newsom wrote in an opinion column for the Daily Breeze last year.

But former Los Angeles Mayor Antonio Villaraigosa is cozy with the bail bond industry and law enforcement groups that object to proposed reforms. That has helped him gain recent endorsements from the California Police Chiefs Assn. and the Peace Officers Research Assn.

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Villaraigosa “supports reforming — not ending — cash bail,” says his campaign spokesman, Luis Vizcaino. “Cash bail does have a place in keeping our communities safe.”


State Treasurer John Chiang advocates for major change. “California should reform our for-profit bail system for those who don’t pose a public safety risk,” he says.

There’s a good chance there’ll be a major overhaul this year while Brown is still governor. He hasn’t been saying much. But last year he pledged to work with legislators and state Supreme Court Chief Justice Tani Cantil-Sakauye “on ways to reform the system in a cost-effective and fair manner, considering public safety as well as the rights of the accused.”

The chief justice created a work group of judges that recommended several things. “California’s pretrial release and detention system must be reformed,” it concluded.

That effort in the Legislature is being spurred by Sen. Bob Hertzberg (D-Van Nuys) and Assemblyman Rob Bonta (D-Oakland). A Hertzberg bill passed the Senate and is stuck in the Assembly Appropriations Committee. A Bonta bill died on the Assembly floor.

“The cost of bail has skyrocketed since Jerry was governor the first time,” Hertzberg says.

David Quintana, the lobbyist for bail bond agents, agrees that bail is too high. “It doesn’t work for us if it’s too high for people to pay,” he says. “They stay in jail.”


Other states are far ahead of California on reform. For a change, we’re trying to play catch-up.

Pretrial release should be based on a suspect’s flight risk and danger to the public. We shouldn’t be requiring a payment for freedom. Isn’t that extortion? It sure seems un-American.

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