Bail Reform in California: What You Need to Know

18 Mar, 19

• in Legal Info

A few years ago, it seemed like California was on the verge of completely eliminating cash bail with a bill known as SB 10. When voters rejected that measure, many thought the conversation was over. However, the push for change didn’t stop; it just shifted. Now, the landscape of bail reform California is shaped by a critical Supreme Court ruling, In re Humphrey, and a variety of new policies being tested at the county level. This has created a complex system that can be difficult to understand. Here, we’ll walk through how we got here and what these changes mean for you.

Senate Bill 10 California, the state’s new bail reform law, was signed by Governor Jerry Brown on August 21, 2018. SB 10 was drafted for the elimination of cash bail system, citing racial and socioeconomic biases in the current cash-based bail system. There are five fundamental facts about the existing system and the system that may replace it.

How Would SB 10 Change California’s Bail System?

The new system proposes to replace monetary bail with risk-based pretrial analysis. Instead of posting bail or a bond, people charged with felony crimes would undergo a risk-assessment system designed to determine defendants’ likelihood of attending all court proceedings and the risk they pose to the community. With a few exceptions, only felony crimes would qualify a defendant for the assessment; most people arrested for misdemeanor offenses would be released within 12 hours. This risk-assessment system would consider factors like age, number of arrests and a defendant s criminal history

Why California’s Bail Reform Is On Hold

Although the bill was signed into law, it was not set to go into effect until October 2019. The bill is controversial and faces widespread opposition and criticism. In January 2019, a successful referendum delayed the enactment of the law. Instead of being enacted as scheduled, the California Judicial Council placed the issue of bail reform on the 2020 ballot, marking a huge victory for the state’s 3,000 bail bonds businesses and the more than 7,000 people employed by them. The referendum will keep the cash-based bail system alive in California for at least another year.

How Does the Current Cash Bail System Work?

This is not a case of a state passing a measure to keep up with the rest of the country. So far, only Alaska and New Jersey have enacted similar legislation. Under the current system, people arrested and charged with crimes are either released on their own recognizance, assigned a monetary bail to ensure their court appearances or denied bail and kept in custody until their cases are resolved. In cases where a monetary bail is assigned, defendants have two options: They can either scrape up the entire bail amount or enlist the services of a bail bonds agent. Because bail amounts are usually thousands of dollars, the option of paying the entire amount is often impractical or impossible. When going through a bail bonds agency, defendants need only come up with 10 percent of the bail amount along with a small fee, which is usually around $50 to $100. After the defendant pays the bonds agency, the agency secures a bond for the entire amount and gives it to the jail.

The Outcome of Senate Bill 10 (SB 10)

When Senate Bill 10 was presented to voters as a ballot proposition, it was ultimately rejected. This decision meant that California’s long-standing cash bail system would remain the law of the land. The opposition to the measure was surprisingly diverse, bringing together the bail industry and some civil rights advocates who were concerned that the proposed risk-assessment algorithms could introduce new, hidden biases into the pretrial process. Because voters rejected the measure, the established system of securing release through a bail bond continues to be the primary option for defendants and their families across the state.

With the cash bail system still in place, anyone who is arrested can work with a bail bonds service to post bail on their behalf. This process allows a defendant to pay a small percentage of the total bail amount, typically 10%, to secure their freedom from jail. It’s a critical step that enables people to return to their jobs, care for their families, and prepare for their court dates from home instead of behind bars. The vote reaffirmed that for many Californians, the services provided by bail agents are an essential part of handling the justice system, especially when facing bail amounts that would otherwise be impossible to pay.

Why Are Supporters Backing Away From SB 10?

After the successful referendum, many previous supporters of the new law are backpedaling. Among these deserters, the most noteworthy are the American Civil Liberties Union (ACLU) and the Human Rights Watch. Both organizations have been advocating for bail reform in California for years, but now neither believes this bill is the answer. Starting as a controversial bill and losing some major supporters, SB 10 could be dead on arrival when it hits the floor next year.

Criticisms of Risk Assessment Tools

While the goal of replacing cash bail is to create a fairer system, the proposed alternative has drawn significant criticism. Simply swapping out cash bail for computer-based risk assessments isn’t a perfect solution. Many civil rights groups, including some who initially supported bail reform, have raised concerns that these tools can have their own biases, especially racial ones. The core issue is that these algorithms are fed historical data from a justice system that already contains inequalities. Critics worry that using information from communities that are often over-policed, particularly communities of color, will only perpetuate the same unfair cycles in a new, automated way.

These risk assessment tools calculate a “risk score” using factors like a person’s age, criminal history, and even their neighborhood. The problem is that this data can be misleading. For example, someone from a heavily patrolled area might have more prior arrests for minor offenses, which could unfairly inflate their risk score compared to someone from a different neighborhood who engaged in similar behavior. Studies have shown these tools can lead to inequitable results for people of color. Furthermore, even after court rulings intended to ensure fair treatment, many judges still set bail amounts that people can’t afford, raising questions about whether these tools truly solve the problem of wealth-based detention.

What Are the Main Arguments Against Ending Cash Bail?

Consisting largely of persons tied to the bail bonds industry, opponents of SB10 are urging people to vote the law down in 2020. SB 10, they contend, has no funding allotted to run the proposed risk-based assessments. Additionally, they argue that without monetary incentive, the rate of defendants failing to appear in court will rise dramatically, which will cost the state substantially, pose a threat to California’s communities and slow down its courts. SB 10 was passed to eliminate cash bail and support equality by basing bail on risk factors like a defendant s criminal history is not going forward as planned, and with its major proponents already jumping ship, it is likely to lose the support it needs long before it goes to a vote. People earning a living in the bail industry oppose the bill for obvious reasons, and supporters of bail reform worry that SB 10 may actually make problems worse. Read How new bail bond reform hurting the USA taxpayers

The “In re Humphrey” Supreme Court Ruling

A significant shift in California’s bail system came from a case known as In re Humphrey. In this landmark decision, the California Supreme Court established a new precedent. The court ruled that it is unconstitutional to keep someone in jail before their trial simply because they cannot afford to pay bail. This decision fundamentally changed the conversation around pretrial detention, moving the focus away from a person’s financial situation and toward a more individualized assessment of their circumstances. The core principle is that a person’s freedom shouldn’t depend on the amount of money they have in their bank account.

This ruling was a major step in bail reform, aiming to create a more equitable system. Before this decision, bail amounts were often set based on a predetermined schedule for specific alleged crimes, without much consideration for whether the individual could actually pay. The Humphrey ruling requires courts to look deeper, ensuring that the system doesn’t unfairly penalize those with fewer financial resources while they are still presumed innocent. It forces the legal system to consider fairness and the individual’s rights at the very beginning of a case.

How the Ruling Changed Bail Setting

Following the In re Humphrey decision, judges can no longer default to a standard bail schedule without considering other factors. The ruling mandates that judges first explore non-monetary options to ensure a person returns for their court dates, such as electronic monitoring or regular check-ins. If a judge determines that cash bail is the only way to guarantee public safety or a defendant’s appearance in court, they now have an additional responsibility. The judge must explicitly assess the individual’s ability to pay that amount. This means they have to consider the person’s financial situation before setting a bail amount that could be impossible for them to meet.

The Impact and Challenges of Current Reforms

While the intention behind the Humphrey ruling was to make the system fairer, its real-world impact has been complicated. A joint study from UCLA Law and UC Berkeley Law revealed that these reform efforts might not be working as intended. The research found no clear evidence that the ruling has actually made cash bail more affordable for most people. In many cases, individuals are still facing high bail amounts that are far beyond their reach. This is where the support of a professional bail bond agency becomes critical. For families across California, working with an experienced agent who offers flexible payment plans can be the only way to bring a loved one home while they await trial.

Local Bail Reform Efforts

While statewide rulings like In re Humphrey set the overall direction, much of the real change in bail reform is happening at the local level. Across California, individual counties are experimenting with different approaches to pretrial justice, leading to a patchwork of policies rather than a single, uniform system. This means that the process you might face in Los Angeles County could be quite different from the one in Sacramento or Riverside. According to The Bail Project, this local progress is a key part of moving forward. These county-level initiatives are often designed to address the specific needs and challenges of their communities, from reducing jail overcrowding to ensuring that low-level offenses don’t result in unnecessary jail time for those who pose little risk to the public.

Los Angeles County’s “Zero-Dollar Bail” Policy

One of the most well-known local reforms is Los Angeles County’s “zero-dollar bail” policy. This initiative, which has evolved over time, generally applies to most non-violent misdemeanors and some low-level felonies. Under this policy, individuals arrested for these types of offenses are released from custody without having to post any money. The goal is to prevent people from being held in jail simply because they cannot afford a few hundred dollars for bail. However, it’s important to understand that this policy does not apply to all crimes. Individuals accused of more serious or violent offenses will still have bail set by a judge, and the need for traditional bail services remains a reality for many families in LA County.

Other Local Changes Across California

Los Angeles isn’t the only county making changes. Many other jurisdictions throughout the state are implementing their own versions of pretrial reform. Some are using new risk-assessment tools to help judges make more informed decisions, while others are expanding pretrial services that provide support and supervision for individuals released before their trial. This landscape of varying local rules can be confusing for anyone trying to help a loved one who has been arrested. Having an experienced bail bonds agent who understands the specific procedures in different California locations is invaluable. They can provide clarity and guidance based on the unique policies of that particular county, ensuring you know what to expect.

Statistics and Evidence in the Bail Reform Debate

A central question in the bail reform debate is whether these changes compromise public safety. Opponents often express concern that releasing more people before trial without cash bail will lead to an increase in crime and more defendants failing to appear for their court dates. However, proponents of reform point to a growing body of evidence that suggests otherwise. Several studies indicate that eliminating or reducing the reliance on cash bail does not have a negative impact on public safety or court appearance rates. This data is crucial because it challenges the long-held assumption that money is the most effective tool for ensuring people follow through with their legal obligations.

Lessons from Other States

To understand the potential effects of bail reform, we can look at states that have already made significant changes. New Jersey, for example, implemented comprehensive bail reform that largely replaced cash bail with a risk-assessment system. The results have been notable. According to The Bail Project, New Jersey saw its pretrial jail population drop by nearly 40% after the reforms were put in place. Importantly, this decrease in incarceration did not lead to a corresponding rise in crime or an increase in the number of people skipping their court dates. This example suggests that alternatives to cash bail can be successful on a large scale, achieving the dual goals of reducing unnecessary incarceration and maintaining public safety.

Data from California’s Emergency Bail Schedules

California has had its own experiences to draw from, particularly with the emergency bail schedules implemented during the COVID-19 pandemic. These schedules set bail at $0 for most misdemeanors and some low-level felonies to reduce jail populations. However, the results here were more mixed than in other states. The study by UCLA Law and Berkeley Law found that these emergency measures did not lead to a significant decrease in the state’s overall pretrial jail population. This highlights a key challenge: the specific details of how reform is implemented matter immensely. It shows that simply eliminating bail for some offenses may not be enough to address the deeper, systemic issues within the pretrial justice system.

Federal Government Involvement

The conversation around bail reform isn’t just happening at the state and local levels; it has also drawn attention from the federal government. In some cases, there have been efforts at the federal level to influence or even block states from moving away from traditional cash bail systems. Proponents of local reform, including organizations like The Bail Project, argue that this kind of federal interference is a mistake. They believe that decisions about pretrial justice are best made by the states and communities that are directly affected. This tension adds another layer of complexity to the future of bail in California, as state-led initiatives must contend with potential challenges from the federal government, creating uncertainty for everyone involved in the system.

Frequently Asked Questions

I thought California got rid of cash bail. Is that true? That’s a common misconception. While there was a major push to eliminate cash bail with a bill called SB 10, California voters ultimately rejected it. This means the traditional cash bail system is still in place across the state. For most arrests, securing release from jail still involves either paying the full bail amount or working with a bail bonds agency.

How does the In re Humphrey court ruling actually change how bail is set? The In re Humphrey decision requires judges to consider a person’s ability to pay before setting a bail amount. The ruling states that it’s unconstitutional to keep someone in jail simply because they can’t afford bail. In practice, this means a judge must first look at non-financial release options. If they decide cash bail is necessary, they are supposed to set an amount the person can reasonably afford, though studies show this doesn’t always happen.

Does “zero-dollar bail” in Los Angeles mean no one needs a bail bond there? Not at all. The “zero-dollar bail” policy in Los Angeles County only applies to most non-violent misdemeanors and some lower-level felonies. For any serious or violent offenses, judges still set a cash bail amount. This means many families in LA County will still need the services of a bail bonds agent to secure a loved one’s release from jail.

Why are the bail rules different from one county to another? Because a single statewide reform bill failed, individual counties have started creating their own local policies. This has resulted in a patchwork of different rules across California. For example, the pretrial process in Sacramento County might look very different from the one in San Diego County. This is why working with an experienced bail agent who knows the specific procedures in your local area is so important.

With all these reforms, is the process of getting a bail bond still the same? Yes, the core process of working with a bail bond agent remains the same. If a loved one has been arrested and bail has been set, you can contact an agency to help. You typically pay a small percentage of the total bail amount, and the agent posts a bond with the court to secure the person’s release. An agent guides you through the paperwork and explains your responsibilities, providing clarity in a confusing system.

Key Takeaways

• California’s Cash Bail System Is Here to Stay: Voters rejected the statewide proposal to eliminate cash bail, so working with a bail bonds agent remains the most common path to securing pretrial release for a loved one.
• A Person’s Finances Must Be Considered: Thanks to the landmark In re Humphrey ruling, judges are now required to assess an individual’s ability to pay before setting a high bail amount, ensuring freedom isn’t determined solely by wealth.
• Bail Policies Vary Greatly by County: Reform is happening at a local level, meaning the rules in Los Angeles can be completely different from those in Sacramento. This patchwork of policies makes understanding the specific procedures in your area essential.

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• 5 Major Things about California’s New Bail Reform Law
• Senate Bill 10 – Pretrial Release and Detention
• Bail Reforms California 2018 | Espinoza Bail Bonds
• Elimination of Money Bail. Who will bail out the industry?
• Your Guide to the Placer County Bail Schedule