There have recently been a lot of changes to California’s bail system. Bail reform bills are regularly introduced in the state senate. A zero-bail system was introduced in the spring of 2020 to reduce the jail population during the covid-19 pandemic, then discontinued in May 2022. And the state Supreme Court ruled that cash bail is unconstitutional if it doesn’t take a defendant’s ability to pay into account.
Whether you’re just interested in the justice system and the impact bail has on the poor, or if you or a loved one has been charged with a crime, it can be hard to know where things stand right now. This article details how the bail system currently works in California and what’s happening with bail reform efforts in the state.
How Does Bail Work in California?
At present, the state bail system works largely the same as it ever has. If you are arrested, you will be taken to jail and booked according to the local bail schedule, which sets a bail value according to the specific crimes you have been accused of. Usually, the jail will add up the bail for each offense you were arrested for and require you to post bail in the total amount. A bail reductions attorney can help if you can’t afford bail.
How to Pay Bail
Those who cannot afford bail may have a friend or relative loan them the money or work with a bail bond company, which will post bail on the inmate’s behalf in exchange for a premium, which is legally required to be no higher than 10% of the total bail. For example, if your bail is $10,000, your bail bond may cost you $1,000. Many bail agencies will reduce the fee to 8% of the total bail if the defendant is represented by a qualified criminal lawyer.
Bail can also be posted using money the defendant already has on hand. Most jails do not take cash, so defendants need to obtain a cashier’s check or money order to pay bail this way. For smaller amounts though, they may accept personal checks.
A third alternative is posting real estate worth twice the value of the bail with the court. Using real estate properties to obtain bail is a complicated process that typically requires the assistance of counsel and cannot be done until the arraignment.
No matter what method a person uses to secure bail, they should be released within a few hours after it is posted.
What if You do Not Post Bail?
If you do not post bail, the District Attorney has up to three court days, excluding weekends and holidays, to arraign you. This process is where they formally bring you to court and file charges. They must release you if no charges have been filed.
What if You Skip Your Court Date?
Once you’ve posted bail, you must appear in court on the scheduled date, or your bail will be forfeited to the court, and a bench warrant for your arrest may be issued. If you used a bail bond, the company will seek full reimbursement from you or your cosigner. If you had a reasonable excuse for missing the court date and are able to appear within 180 days of the scheduled date, your attorney may be able to have the forfeiture vacated. A vacated forfeiture means you or the bail bond company will still be eligible to retrieve the bail as long as you show up for your rescheduled court date.
What Happens to Your Bail After the Trial?
After the trial is completed, the bail will be returned to the bond company if you used one. If you paid a cash bail, you will receive the full bail back if you are not convicted, but if you are, the money may be applied towards any restitution or fines you have been ordered to pay.
San Diego’s Bail System
In our fair city, the Sheriff’s department is more likely to release suspects on their own recognizance than in other Counties. This decision has less to do with bail reform efforts in California than the need to reduce the population in overcrowded local jails. The San Diego Sheriff’s Department, which runs the local jails, typically releases those accused of non-violent misdemeanors, including first-time DUIs, as long as they promise to appear at their arraignment. Those charged with violent crimes or felonies, or who have previous offenses on their record are typically still required to pay bail.
San Diego Bail Amounts by Crime
The initial bail cost varies dramatically based on the offense and the jurisdiction where a crime is handled. If you are unsure how much bail will cost for a particular offense, check the local area’s bail schedule. The cost of bail has continued to rise steadily over the past few decades. California now has one of the highest median bail rates in the country, coming in at $50,000 —five times higher than the $10,000 median rate in the rest of the country. Research shows that as bail rises, pre-trial release rates drop dramatically.
San Diego’s bail fees can be found here, but keep in mind that for most non-violent misdemeanor offenses, the Sheriff’s Department is releasing offenders without bail. To give you an idea of how much bail is for different crimes in our city, here’s the bail price for a variety of offenses:
- Reckless driving: $1,000
- Petty theft (item valued at $50-$400): $1,000
- DUI (first offense): $2,500
- Possession of a concealed weapon: $10,000 Misdemeanor domestic violence (first offense): $10,000
- Misdemeanor child molestation: $20,000
- Felony perjury: $15,000
- Felony money laundering: $25,000
- Felony domestic violence (with a prior conviction): $50,000
- Carjacking: $75,000
- Felony DUI: $100,000
- Voluntary manslaughter: $100,000
- Rape: $100,000
- Felonies that result in a loss of property valued at over $3,200,000: Upwards of $2,500,000
Offenses not explicitly spelled out in the bail schedule are listed under the catch-all provisions. Misdemeanors not listed in the county chart have a bail of $5,000. The bail for unlisted felonies is based on the potential sentence. For offenses punishable by 3 years or less prison time, bail is $20,000, whereas crimes punishable by life imprisonment require a bail of $1,000,000. Anyone facing charges for an offense punishable by life imprisonment without parole or the death penalty is ineligible for bail.
Bail Modifications at the Arraignment
Once the case goes to court, the judge has the independent right to set bail. If you have already posted bail, the judge has the right to increase your bail, especially if the charges filed against you are more serious than the ones you were originally arrested for.
If you are still in jail at the time of your arraignment, the judge can release you on your own recognizance, meaning you promise to appear at trial without posting any bail. The judge can also raise your bail, keep it the same, or lower it to any amount. In many cases, your attorney may be able to convince the judge to drastically reduce your bail below that set by the standard San Diego bail schedule or to allow you to be released on your own recognizance.
When considering the proper bail amount for a specific case, the judge will evaluate the following:
- The standard bail schedule for the offenses you’re accused of
- Your defense attorney’s arguments for your release
- Any arguments the prosecution makes against your release
- Your criminal history
- If you present a threat to the public
- How likely you are to skip future court dates
The only cases in which you will not be entitled to bail are death penalty cases or cases in which the judge determines you are a flight risk or a danger to public safety.
What About Bail Reform?
Throughout the last few years, there have been many attempts to reform or eliminate the cash bail system in California. In 2017, a man named Kenneth Humphrey sued the state of California, arguing that the state’s cash bail system violates a defendant’s constitutional guarantees of due process and equal protections under the law. His attorneys argued that a person’s ability to pay bail should not be the deciding factor in whether or not they are required to stay behind bars after they have been accused of a crime.
At the same time the lawsuit worked its way through the courts, Governor Jerry Brown signed California SB10, which would eliminate cash bail in the state. Before the bill was enacted though, the bail bonds industry managed to get a referendum on the ballot to leave the issue to voters.
Unfortunately, SB10 and the resulting Proposition 25 included a questionable risk assessment in place of cash bail for felony-level offenders and those accused of domestic violence. Those deemed ineligible for release under the pre-trial risk assessment would often be left behind bars until their trial. This problematic methodology to determine who would be eligible for release resulted in even reform advocates, including the ACLU, urging voters to decide against the proposition.
Interestingly, while voters were mulling over the pros and cons of bail reform in Prop 25, the state was forced to experiment with a no-cash bail system as a result of covid. In the spring of 2020, the California Judicial Council introduced the Emergency Bail Schedule, allowing for the pre-trial release of practically all non-violent, misdemeanor offenders. The zero bail system meant that, in most cases, when officers caught someone committing a misdemeanor, they were to issue a citation to appear rather than placing the individual under arrest. While many were skeptical of the plan, statistics showed that the zero bail system did not result in an increase in crime but did result in a 30% reduction in jail populations statewide.
In a way, the zero bail program allowed residents to see how a cash-free bail system could successfully work in California even without the proposed risk assessment used in SB10 and Prop 25. Although opponents of zero bail like to point out crimes committed by defendants released pending trial, those instances were statistically very minor. The evidence shows that most individuals released pre-trial are not a threat to public safety, with a few exceptions. Jailing people before trial is just another punishment against poor people, which falls disproportionately on minorities. Monitoring through GPS and alcohol monitoring devices is very effective at protecting public safety. It is also hugely expensive to incarcerate people before trial and leads to miscarriages of justice of innocent people pleading guilty to get out of jail.
Before the zero bail policy expired in May 2022, in April 2021, the state Supreme Court ruled on the In Re Kenneth Humphrey case. They agreed with Humphrey that cash bail should not be used to detain suspects purely based on their ability to pay. The court ruled that doing so does not keep communities safe, especially when “Other conditions of release — such as electronic monitoring, regular check-ins with a pretrial case manager, community housing or shelter, and drug and alcohol treatment — can in many cases protect public and victim safety as well as assure the arrestee’s appearance at trial.”
So What if Someone Can’t Afford Bail?
If a suspected criminal is unable to pay bail, San Diego courts are now using the Humphrey standard to determine if that person qualifies for pre-trial release. Under the Humphrey ruling, bail itself isn’t unconstitutional, even for the poorest defendants —but it should be a last resort after the court has considered cash-free alternatives such as supervised release, electronic monitoring, etc. When bail is necessary, the court should consider a defendant’s ability to pay before setting the amount.
When to Contact a Lawyer
If you have not yet been charged with a crime, but know you are under investigation, you should contact a defense attorney as soon as possible. Alternatively, if a bench warrant has been issued for your arrest and you have not yet been arrested, a criminal defense lawyer can help you with the situation.
Please call attorney Peter Liss at (760) 643-4050 if you have any questions or want to schedule a free initial consultation.