We’ve previously talked about a lawsuit hoping to put an end to California’s cash-based bail system, but as the lawsuit continues its way through the court system, the legislature has went ahead and introduced a bill hoping to do the same thing. While the bill has been stalled during this legislative session and will probably not be formally voted on until 2018, it has already received the support of Governor Jerry Brown and Chief Justice Tani Cantil-Sakauye. In fact, even if this bill is somehow defeated, it seems like it is only a matter of time before California eliminates the current cash bail system -at least, for non-violent offenders. While the issue is a complicated one, there are many pros and cons of bail reform.
Downsides of Cash Bail
When looking at the benefits and drawbacks of bail and bail reform, it’s easy to see that the biggest downside of having a cash-based bail system is that it is inherently biased towards the wealthy who can afford to pay bail, whereas middle class citizens may have to deal with a bail bond company (who will generally charge 10%) and the poor may are often left behind bars because they cannot afford to pay bail bondsmen in order to be released.
While it’s possible to obtain a bail reduction or to be released without bail with the help of a criminal lawyer, defendants that go this route still often have to pay some amount of the bail and they have to stay in jail until an agreement has been made in court. Those who have to wait in jail because they cannot afford bail often end up losing their jobs, falling behind on their bills and may even have their property repossessed -making them face even more financial hardships than they did before they couldn’t afford their bail. This has even led some people (many of whom are innocent) to accept bad plea bargains just so they can be released from jail and get back to their every day lives. Obviously this is not a system that works for everyone.
Cons of Pre-Trial Release
But there are cons to turning to universal pre-trial release as well and making dramatic changes to the bail system isn’t an overnight process and it can be difficult to find a solution that eliminates the problems of our current system without adding new problems. The biggest risk in eliminating the bail system altogether is that some dangerous criminals may be released onto the streets again -potentially causing a threat to public safety. In fact, in New Jersey a man released while awaiting trial as a result of a reformed bail system murdered someone just days after his release. That being said, studies show most defendants currently held pre-trial would not be a danger to the public with proper monitoring.
Pros and Cons of Bail Reform
Most states that have eliminated the financial bail system have instead turned to a system that allows the judge to evaluate someone’s flight risk and danger to the public based on their own knowledge and experience and an algorithm based on artificial intelligence (similar to the ones used to help determine sentencing). As you might imagine, there are many advantages and disadvantages to bail reform of this type.
While some have criticized this new approach and warn that it puts the public in danger, often pointing to the murder in New Jersey as an example, proponents of the new system argue that potentially dangerous criminals can still be set free under a cash-for-bail system only this new technique doesn’t leave the poor behind bars while the rich pay bail and walk free.
Another major pro of bail reform, aside from eliminating class divides in the justice system, is the ability of judges to speed through pretrial hearings. While before judges would have to determine if someone was eligible for bail and, if it was granted, determine a fair value based on the arguments of the prosecutor and the defense attorney, now they can look at the defendant’s flight risk and risk of reoffending and make a decision on whether someone should be released or kept behind bars. The faster judges can process these pretrial hearings, the sooner defendants can be moved through the system, the sooner they can be released.
Finally, some bondsmen refer defendants to specific defense lawyers based on financial payoffs called “capping.” This is illegal and could get a lawyer disbarred, but it is rarely prosecuted. Another pro to bail reform is that it also promises to benefit criminal defendants by protecting them from being referred to lawyers based solely on payoffs and not on competency.
If you have any questions about the benefits and drawbacks of cash bail, bail reform or how things may change after changes have been implemented, feel free to call (760) 643-4050 or (858) 486-3024 to speak with Peter M. Liss.