Capitol Journal: California’s bail system punishes the poor, and it’s time for the government to do something about it
It’s a recurring nightmare: You get busted, perhaps for drunk driving and causing an injury accident, or maybe on a bum rap. You’re jailed and can’t make bail.
You’re shoved behind bars with a scummy cellmate. You can’t go to work. Bills go unpaid. And you don’t have any mobility to plan your defense.
You’re locked up solely because you don’t have enough money to arrange bail.
But some wealthy guy — booked on a more serious charge than you — waltzes out onto the street the next day after writing a check and posting bail.
Is that fair? Not by any stretch. It reeks of extortion, medieval practices and being un-American.
“If you’re a threat to public safety, stay in jail,” says state Sen. Bob Hertzberg (D-Van Nuys). “If you’re a flight risk, stay in jail. But if you’re just poor, is that justice? Come on, man!
“Poor people get stuck in jail because they don’t have the few thousand dollars to get out on bail,” the veteran lawmaker continues. “And their whole life is turned upside down even though they’re not a public threat.”
Hertzberg and Assemblyman Rob Bonta (D-Oakland) are sponsoring legislation to reform California’s archaic bail system. Some other states and the federal government are way ahead of normally progressive California on this.
Even Mississippi, among the reddest of red states, has been enacting reforms. Our blue state is still in the Dark Ages.
“Justice shouldn’t be based on how much money you’ve got in your pocket,” Bonta says. “We have a profit-based bail system where a whole industry makes money off of posting bail.
“Only two countries in the world allow a for-profit bail system: us and the Philippines. It’s a wealth-based system, not a just system.”
Naturally, the bail bond industry doesn’t share that view.
“There might be room to look at how bail is set. We might want to tinker around the edges,” says Harmeet Dhillon, an attorney for the California Bail Agents Assn. “Nobody says it shouldn’t be changed.
“But bail has served a purpose for 100 years. It ensures a defendant’s attendance at trial. We’ve also found that having a monetary security is more effective than costly and ineffective devices like monitoring or ankle bracelets.
“It’s fair,” she continues, “because the same bail is applied to you whether you’re poor or a billionaire. It doesn’t discriminate on the basis of poverty or wealth. It’s like a utility bill.
“And the current system is constitutional.”
Yes, there’s plenty in those comments to incite argument.
A reform outfit, Equal Justice Under Law, has filed several lawsuits around the country challenging the constitutionality of bail systems, including San Francisco’s. Dhillon, a leading California Republican Party activist, is participating in the San Francisco defense, representing the bail agents’ organization.
This issue has been around the Legislature for decades, but the bail agents lobby is strong and has blocked major changes. There hasn’t been much serious action in years.
Now Hertzberg and Bonta are trying to elevate the issue to high-priority status — up there with crumbling highways, homelessness, Obamacare replacement and Donald Trump resistance.
“It’s tough,” says Hertzberg, a former Assembly speaker. “But we can get it done this year.”
He and Bonta aren’t sure what they want to get done, or realistically can. Their current legislation lists the problem, but is blank on the solution.
Late last year, Hertzberg briefly proposed just adopting the federal system. It involves a quick court hearing to determine whether a defendant is a public safety danger or a flight risk. If neither, he’s released awaiting trial.
Hertzberg says he didn’t press the issue last year because it would have interfered with Gov. Jerry Brown’s successful efforts to pass a sentencing reform ballot initiative.
Now he and Bonta are trying to weave together a coalition to pass a bill. Lots of things are being considered: ankle bracelets, probation-like monitoring, trial date reminder calls — like the ones from a dentist.
The legislators say research has found defendants show up for trial at about the same rate whether they’re free on bail or not.
In California, counties pretty much set their own bail rates. Typically, the agent charges a nonrefundable 10% fee for posting the bail. And the bail is forfeited — making the fugitive’s family financially responsible — if the defendant flees.
We’re talking big money. The Public Policy Institute of California two years ago estimated that the median bail amount in this state was $50,000 — five times higher than the rest of the nation. That reaps $5,000 for a bail agent. A recent federal survey found that 46% of Americans don’t even have $400 for an emergency.
The policy institute reported that roughly 63% of inmates in crowded county jails are there awaiting trial, largely because they can’t afford bail. Taxpayers are paying $116 a day to house and feed them.
Why do we need bail at all? Keep the dangerous characters locked up. Release the rest. If they stray, call out a bounty hunter.
“That might work in Maine or somewhere,” Dhillon says. “But in a state like California with a very large population of transients, it doesn’t support the assumption that people are just going to come back and stand trial.”
There should be ample room for compromise.
Sure, life often is unfair. But when government can do something to make it a little less unfair, it should.
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