The national effort to get states to move away from a bail system based on money — something detractors call unjust and antiquated — got a big boost this week: A yearlong study backed by California's chief justice recommended money bail be abolished and replaced with a system that includes robust safety assessments and expanded pretrial services.
Calling the state's commercial bail system "unsafe and unfair," a working group created by California Chief Justice Tani Cantil-Sakauye argues that the state's bail system bases a defendant's liberty too much on his or her finances, rather than an assessment of whether the defendant is a flight or safety risk.
"Therein lies the fundamental fairness issue of: Is there a two-tier justice system that is operating here?" asks Martin Hoshino, who heads the Judicial Council of California, which is an advisory and policymaking council of the state's courts.
This week's report says those of means awaiting trial often have the ability to pay their way out, while most low-income people simply do not.
"These recommendations reflect the overwhelming belief that wealth-based justice is not justice at all," says Assemblyman Rob Bonta, D-Oakland, who along with state Sen. Bob Hertzberg, D-Van Nuys, co-authored a bill proposing big changes to cash bail.
"For too long, California has forced people who don't pose a threat to the public and who have not been convicted of a crime to sit in jail and face losing their jobs, their cars, their homes and even their children if they can't afford to buy their freedom," Bonta says.
State lawmakers have pledged to take up bail reform when the California Legislature reconvenes in January, and it also has the backing of the state's governor, Democrat Jerry Brown. This new report puts significant judicial weight behind those efforts, which are likely to become the nation's biggest experiment in moving away from commercial bail.
The report recommends a phaseout of a money-based bail system, replacing it with a risk-based pretrial assessment that uses a computer algorithm and judicial discretion; expansion of preventive detention for the most dangerous cases; and expansion of pretrial services in every county. The latter could include monitoring compliance with a defendants' release conditions, anger management counseling and reminders to people to show up on their court date.
If the changes are enacted, California would join New Jersey in making sweeping changes to cash bail. New York City also has done away with cash bail for defendants who are accused of low-level or nonviolent crimes.
Cantil-Sakauye said she heartily backs the panel's recommendations, adding that the state's current pretrial system unnecessarily compromises victim and public safety.
"This report should serve as a framework as we work with the governor and the legislature to address these issues that are central to our values and responsibilities of providing fair and equal access to justice for all Californians," she said.
'A very strange system'
Supporters of reform say sweeping changes are overdue: The state has among the nation's highest bail costs or "schedules" and high rates of people who don't show up to court.
"It's really actually a very strange system where we are allowing private companies to make profits off of people's freedom with no concern for public safety," says Natasha Minsker, who directs the ACLU of California's Sacramento office.
The state's jails are filled, she says, with people who simply don't have the money or property to get out on bail.
"Upwards of 60 percent of the people in California's jail are awaiting trial or awaiting sentencing, and they're there because they couldn't afford to post bail," Minsker says. "So the bail system in California is not working from a justice perspective. And it's not working from a safety perspective. Cash bail is failing at its basic jobs."
The industry view: Reforms justified, but abolition goes 'too far'
Some prosecutors, judges and the bail industry argue that cash bail remains a vital tool that has worked well, especially in the most difficult cases.
"I think the bail industry and the research shows we do our best work, in terms of reducing long-term fugitive rates and returning people to court when they flee, in high-risk felony cases," says Jeff Clayton, director of the American Bail Coalition, a trade group. "We don't prevent people from committing crime, but neither do any of the other types of release."
He agrees reforms are warranted: Bail rates in the state are too high, he says, and low-level offenders with low incomes should not wallow in jail. But Clayton calls the report's recommendation to phase out commercial bail extreme.
"That's going too far," he says. "Bail should remain as an option — and then the question becomes, in what cases and how often should it be used."
Backers of commercial bail also warn that California risks trading cash bail for ankle bracelets and constitutionally dubious expansion of preventive detention. And they believe the abolition of money bail would prove contrary to the state's constitutional provision that defendants have a right to bail under "sufficient sureties."
They argue that such sweeping changes would require a state constitutional amendment, something on which the judicial report is silent.
Shelley Curran, director of criminal justice services with the Judicial Council of California, isn't so sure. " 'Sufficient sureties' has not been defined either by case law, statute or the constitution," she says.
Many bail reform details remain to be worked out in political battles ahead in Sacramento when lawmakers reconvene, including the cost of expanding pretrial services across the state. Rough estimates are that reforms will cost several hundred million dollars.
Martin Hoshino, with the state courts' advisory council, says it's foolhardy to think that you can implement sweeping reforms across a state as large as California "and not get those better outcomes for public safety, those better outcomes of more fairness for people, if it's not properly funded."
But it is clear California is moving toward comprehensive change that will have far-reaching implications across its criminal justice system in how it handles defendants charged with a crime but awaiting their day in court.
"The status quo has had a devastating impact on low-income communities and people of color in California without regard to public safety or helping ensure court appearances," said Margaret Dooley-Sammuli, criminal justice and drug policy director with the ACLU of California. "As momentum for reforms grows nationwide, now is the perfect time for California to act. We look forward to working with all three branches of California's government to ensure that all — not just the wealthy — have access to justice."