By Kimberly Tuttle (CMC ’19)
California Governor Jerry Brown approved legislation on August 28, 2019 that will abolish California’s cash bail system, effective October 2019. In a statement to the public, Brown said “California reformed its bail system so that rich and poor alike are fairly treated.” Cash bail has been a controversial issue in the United States, especially in California in recent years. Supporters of cash bail view it as the best way to ensure defendants show up for trial. Though, critics argue the system is exploitative of minorities and must be reformed to exclude monetary incentivization. Creating a new system that achieves both a high return rate for defendants on trial and non-discriminatory practices is crucial for the future success of California’s criminal justice system.
The cash bail system is contingent on a person’s ability to pay typically large sums of cash. It allows defendants to be released from custody before their hearings on payment of money or pledge of property which may be refunded if they return to court for trial. The system is intended to incentivize defendants to return to court. Though, it has been widely criticized for being racially and socioeconomically discriminatory. For this reason, abolishing the cash bail system has been a goal for civil rights activists, namely the ACLU, for upwards of forty years.
In January 2018, California appellate court ruled the cash bail system unconstitutional, making it only a matter of time before its abolishment. A petitioner, Humphrey, defended his right to due process after he was assigned a set bail amount that was unreasonably high given his financial status. The landmark ruling in this case, In Re Humphrey, set new precedent for trial judges in California.
The former system required judges to take into consideration a number of factors including seriousness of the offense, public protection, prior criminal record, and probability that the defendant will appear for trial. In practice, this system targeted minorities. If the defendant was unable to afford bail, the defendant was given two options: stay in jail until trial or accept a plea deal.
Both options are inherently exploitative. If the defendant chose to stay in jail, they would likely be represented by a public defender and have a higher chance of inadequate representation. The annual caseload for public defenders in California range between 109 (for felonies) and 305 (for misdemeanors). Public defenders are widely known for being overworked and unfortunately cannot spend the same amount of time per case as does a paid attorney. The consequence of inadequate representation can be grave; potentially resulting in excess jail time and/or a harsh sentencing.
The alternative choice is a plea deal. If the defendant chose to accept a plea deal, they would be criminally convicted. Having to make the burdensome decision between jail time and a plea bargain can simply be avoided if one has the financial ability to pay bail.
It is unquestionable that the former cash bail system treats the rich and poor unequally. For this reason, many people view the abolishment of cash bail as a huge success. Tani Cantil-Sakauye, the chief justice of California, stated “our old system of money bail was outdated, unsafe and unfair.”
Replacing cash bail is a new system that is based on algorithms that will consider a number of factors about the defendant’s history. The algorithms are created by the courts in each jurisdiction and will determine whom to keep in custody and whom to release while they await trial. People will now be released on their own recognizance or under supervision restrictions, unless a judge deems the person as a threat to public safety. People charged with low level offenses will generally be released under specific conditions and people charged with serious offenses will have a higher likelihood of being held in jail.
The authors of this new California law intended to eliminate bias in court proceedings. However, it has been criticized for potentially perpetuating discrimination, as critics argue the new legislation gives the courts too much discretion to decide who is a public safety threat and a flight risk. Allowing a judge to decide who is dangerous or not leaves room for personal bias to influence decision-making.
The new system puts defendants at risk of being discriminated against by the a judge’s personal discretion, rather than in a systematic manner like cash bail allowed. Californians are fearful that lawmakers replaced one broken system with another.
In addition to the concerns of the perpetualization of injustice in the criminal justice system, this new system takes approximately 7,000 jobs away in the bail bond industry. The immediate implementation of this law has both shocked the workers in the bail bond industry and instilled fear in Californians for the future of the criminal justice system.