Article: Will New California Law Ending Money Bail Backfire?

When Governor Jerry Brown this August signed into law the California Money Bail Reform Act, he declared its changes to the state’s system for deciding what happens to criminal defendants awaiting trial will ensure “rich and poor alike are treated fairly.”

That may be the case when the new law goes into effect (scheduled for October 1 next year, but see below for discussion of what might delay or reverse that), but if it’s such a step forward, why are some long-time advocates of bail reform bad-mouthing, or even working to undo, it?

Critics of the money bail system argue defendants without the money to obtain a bailbond are at a severe and unfair disadvantage. They liken it to the debtors’ prisons of old, in that a low-income defendant, although presumed by law to be innocent and entitled to a fair trial, may be forced to stay in jail solely due to poverty. Many point out this disproportionately affects members of minority groups, and some argue it gives prosecutors heavy leverage to coerce confessions, true or not, or plea bargains, from defendants desperate to get released from incarceration.

California’s legislature has long taken an interest in ending the money bail system, but a bill to do that stalled last year, even though it had the support of many civil liberties, civil rights and criminal justice reform advocates and groups. So, this year Gov. Brown huddled with leaders of the legislature; their closed-door negotiations eventually produced a substantially different bill its backers described as a compromise ironing out the rough spots in the previous year’s bill.

As enacted, the changes in this measure took bail reform farther than any other state (such as New Mexico and New Jersey) to legislate on the subject. It fundamentally eliminates the cash bail system through the state’s courts, replacing it with a new system leaving it up to local courts to assess how serious a risk each criminal defendant poses of not showing up for trial or committing further crimes if not detained until trial.

Under the new system, a defendant judged to present at most a low risk of re-offending or no-showing would remain free before trial, and must be given the least restrictive possible conditions (which could range from regularly checking in with court offices to wearing an ankle monitor). A defendant seen as a medium risk would be assessed as whether it would be safe for him or her to be released before trial.

High-risk defendants would not be released. That category includes persons already under court supervision or charged with certain crimes – certain sex offenses, violent felonies, repeated impaired-driving charges, or violating previous pre-trial release conditions.

So why are some supporters of last year’s bill – such as the American Civil Liberties Union’s California chapter – criticizing the version enacted this year? Mainly, over a new “preventive detention” provision empowering prosecutors to request, and courts to approve, pre-trial detention if nothing less could guarantee appearance at trial or public safety. They fear a desire to avoid political fallout may tempt judges to use that provision too frequently. When Maryland passed a bail reform bill with a similar provision, preventive detention orders rose 15%.

California’s bail bond industry, facing extinction under the new law, is still fighting it, trying to obtain nearly 366,000 voter signatures by the end of November to force a voter referendum in 2020 on the new law. If they succeed, the new law’s fate won’t be known until the voters have spoken.