Bail is one of those cornerstones of the American justice system that everyone is familiar with (even if few people actually understand how it specifically works). But all that is now a thing of the past since the state legislature just passed a bill that was signed into law by governor Jerry Brown that will completely eliminate bail in California. Here’s what a San Marcos criminal lawyer believes you should know about the new bail reform law.
Why Make the Change?
People have been contesting the fairness of the bail system for decades as it creates an unfair system that lets the rich buy their way to freedom while low-income suspects are left behind bars until their trial. A lawsuit recently made its way through the courts challenging the constitutionality of the bail system and a California appellate court found the trial court’s bail setting discriminated against the poor by failing to look at an individual’s ability to pay and alternatives to cash bail. Lawmakers were already looking at alternatives to bail, but the court’s decision ensured that they fix the problem as soon as possible.
How Will it Work?
The new law, which will take effect October of 2019, requires those charged with many misdemeanor crimes to be released from jail or custody without a risk assessment by Pretrial Services within 12 hours. There are some notable exceptions though, as all domestic violence arrests, DUI’s with injuries, third DUI’s and first DUI’s where the driver had a .20 Blood Alcohol Concentration are all subject to a risk assessment by Pretrial Services. All felony arrests are also subject to Pretrial Services reviews.
Pretrial Services reviews are risk assessments that examine the potential danger a suspect presents to the public and that person’s likelihood of appearing in court. The risk assessment categorizes defendants as low, medium or high risk. Low risk suspects are to be released without judicial approval. Medium risk suspects can be released by a judicial officer pre-arraignment with appropriate restrictions. High risk suspects are not to be released until their arraignment. Restrictions on medium-risk suspects may include GPS or alcohol monitoring devices, which will be provided free of charge. Pre-arraignment release must be made within 24 hours but that time frame can be extended another 24 hours if necessary.
The current requirement demanding an arraignment occur within three court days from the arrest (excluding weekends and holidays) appears to remain. High risk defendants not released will face a traditional arraignment except the prosecutor can move to hold a defendant without any condition of release called “preventative detention.” For felony crimes of violence or defendants with violent records, this would result in remaining in jail until their case is resolved though plea agreement or trial.
For most misdemeanors aside from domestic violence charges, if you are not in custody, your Escondido criminal lawyer will be able to attend court without you just like they can under the current system.
Changes to the Court System
This dramatically changes the current system in California. There is simply no more bail. The current system is considered by many to be unfair to the poor because it is based on money not necessarily risk assessment. However, criminal defense attorneys in Fallbrook warn the new system may fall disproportionality on the poor because the new risk assessment system will probably favor those with jobs and a stable life. It will also work to the disadvantage of anyone arrested for a crime of violence. Domestic violence suspects may remain in jail pre-arraignment on cases the prosecutors will never even file. Currently, most defendants charged with non-capital offense cases can make bail if they can afford it.
Recently, the Court of Appeal determined judges under the current bail system must make their own individualized assessment of risk, including looking at the defendant’s ability to pay. In San Diego County, many minor misdemeanor offenders are now cited and released without being booked into jail at all. The new system will allow basic DUI defendants to be released without posting the current bail of $2,500
The new law, called Senate Bill 10, leaves most of the details of risk assessment and its implementation to the counties and judges themselves. As a result, there may be drastic county to county differences in who is released. While the public may be worried about so-called “criminals” being released, the new statute may, in effect, cause the incarceration of even more people because of its vague standard and the elimination of cash bail.
Opponents of the No-Bail Law
The bail bond industry is currently trying to have a citizen’s initiative placed on the ballot to overturn the statute. The ACLU, criminal defense groups and many defense lawyers in Rancho San Diego also opposed the new law.
While the current system of cash bail certainly has many flaws and is discriminatory towards the poor, it remains to be seen whether the new statute will be fair or constitutional. If you have any question about the new bail system or the existing one, Peter M. Liss can help. Please call (760) 643-4050 to schedule a free initial consultation.
Creative Commons Image by James Willamor