At present, judges can assess a dollar amount for a defendant’s release, a price set county-by-county through a “bail schedule.” By the fall of next year, that option will be gone, forcing California judges to choose between releasing defendants or holding them in “preventive detention” until their court dates. Judges will rely on a new pretrial assessment process, which will take into account factors including previous offenses and flight risk, to make a decision for each defendant.
In signing the bill, Brown, who proposed bail reform during his first tenure as governor nearly four decades ago, said the California law will ensure that “rich and poor alike are treated fairly.”
But civil rights groups and the state’s Public Defenders Association, both advocates of abolishing bail, withdrew support from the bill because they said judges might simply choose pretrial detention over release out of an abundance of caution. That could increase the number of people held before trial, precisely the opposite of the law’s intent.
Here in the seat of Contra Costa County, in Judge Christopher Bowen’s busy courtroom, the challenges of the decades-old bail system play out every day.
“The box,” a locked annex where defendants peer from a small opening, is packed with people accused of driving drunk, violating restraining orders, ditching home-monitoring devices and committing drug crimes. Trial dates are set two to three months ahead.
A young African American man, Jaquane Peavy, pleaded not guilty on a recent morning to a robbery charge. Bowen, a Superior Court judge, consulted a bail schedule, then set the amount at $80,000. Peavy returned to his cell, where he is likely to remain for months pending trial.
“Most of our clients are not able to post that amount,” said Diana Garrido, the public defender representing Peavy, who would have had to pay at least $8,000 for a bail bond to get out.
California has moved further than any state in seeking to remove money as a factor in who can remain free before trial, an element of the justice system that civil rights groups say is among the most harmful to the poor and people of color.
The law’s intent is to have far fewer people behind bars awaiting trial, easing incarceration costs and notorious overcrowding in local jails. At $50,000, the median bail in California is by far the highest in the nation. Nearly two-thirds of Los Angeles County’s jail inmates are awaiting trial, many of them unable to afford the cost of bail.
“Bail is gone, the unfairness of people being detained because of their inability to pay is gone,” said State Sen. Robert Hertzberg (D-Van Nuys), a former assembly speaker who co-sponsored the legislation and calls it his biggest accomplishment in office. “And we know we have the ability to do more going forward.”
But the American Civil Liberties Union, among early supporters of the measure, says the law could do more harm than good. In the ACLU’s view, the law removes the option of bail without also restricting the detention power of judges, some of whom are elected. Even prosecutors acknowledge that judges might err on the side of caution, realizing that they will be more sharply criticized if a defendant commits a crime after being released than if a defendant is unfairly held in jail.
Under the law, judges must show “clear and convincing evidence” that a defendant is a flight or public-safety risk. Public defenders had wanted the option of pretrial detention limited to those charged with violent crimes.
“It does eliminate wealth-based detention decisions, which have long been a huge injustice in our system,” said Robin Lipetzky, the public defender here and president of the California Public Defenders Association. “But with so much power in the hands of judges, the worry is that they will default to business as usual.”
Bail is intended to allow the presumed innocent to remain free before trial while also ensuring that they show up for their hearings. The U.S. Constitution prohibits “excessive bail,” but critics of the system say judges rarely consider a defendant’s ability to pay it.
The result is often pretrial detention, even for those charged with nonviolent offenses. The ACLU says an estimated 450,000 people on any given day, or 70 percent of the nation’s jail population, are behind bars without having been convicted of a crime.
Under the system now in place here, a defendant can pay the full bail amount and, if he or she turns up for court, receive the full amount back.
Those who do not have the full amount can buy a bond from a bail agent. The cost is a percentage of the bail amount, usually 10 percent, which is not reimbursed, regardless of whether the defendant makes the date.
Several states have taken steps to change their bail systems, including eliminating the for-profit bail industry, which makes an estimated $2 billion a year. But California is the first state to abolish bail outright, making it a likely target of future lawsuits.
“In no other industry has the government in this state said, ‘We don’t like you anymore, so you can’t practice your skill,’ ” said David Quintana, a lobbyist who represents the California Bail Agents Association, which on Wednesday filed papers to place the law before state voters on the November 2020 ballot.
The billboards and storefronts of the bail trade are neon landmarks in California towns, and now the 7,000 jobs associated with the industry are scheduled for extinction. Many of those jobs will move to the government to conduct pretrial assessments and other tasks, a boon to public-employee unions that critics of the bill say were brought on board with that promise.
“We’re going to fight until we can’t fight anymore,” Quintana said.
The current effort started in the spring of 2016, when California Chief Justice Tani Cantil-Sakauye formed a working group to study pretrial detention issues. In its report last fall, the group concluded that “a pretrial system that relies exclusively on the financial resources of the accused is inherently unsafe and unfair.”
Among the recommendations was the creation of “a robust risk-based pretrial assessment and supervision system to replace the current monetary bail system,” which it said often “saddled” families “with significant long-term debt regardless of the outcome of the case.”
But it was Kenneth Humphrey, a 64-year-old retiree living in San Francisco, who gave the bail reform movement its biggest shove forward.
In March 2017, Humphrey was charged with following a fellow retiree into his residential hotel room and stealing a bottle of cologne valued at $5. A judge imposed $600,000 in bail for Humphrey’s release, later reduced to $350,000.
He remained in jail until January, when California’s 1st District Court of Appeal ordered his release. The ruling stated that “a defendant may not be imprisoned solely due to poverty” and said judges should take into consideration nonfinancial alternatives to bail.
“What was interesting is that, as we began litigating these cases both in federal court and in state court, the city attorney, the sheriff, the attorney general, even our mayor, all suddenly began to say the bail system is unconstitutional,” said Jeff Adachi, the public defender in San Francisco. “And the beauty of Humphrey is that we’re going to have an opportunity to litigate a lot of these issues going forward.”
Humphrey’s case is before the state Supreme Court, whose chief justice formed the working group that recommended ending bail. The timing of the court’s decision is uncertain, but the ruling is likely to be issued by the end of the year.
Adachi, who has been San Francisco’s elected public defender for 16 years, withdrew his support from the bail legislation when he said revisions to the measure changed “a presumption of release to a presumption of preventive detention.”
The law also leaves in the judiciary’s hands the task of creating pretrial assessment tests, which the public defenders oppose. Studies have found that far fewer African Americans are released before trial, and when bail is granted, it is frequently set higher for black defendants than it is for white defendants.
“They’re not looking at any racial or economic class biases,” Adachi said. “It’s going to be strictly your previous prior crimes, have you missed any court dates, that kind of thing. We don’t want everyone to just walk free, but we want to make sure that a poor person is assessed in a way that’s as fair to them as it is for someone with resources.”
Jeff Rosen, the district attorney for Santa Clara County, was one of a small number of elected prosecutors to support the bail reform effort.
For years, his county has operated a pretrial assessment program that could serve as a model for the planned state system. Rosen said the law is a major step in the right direction, even if not every element is what bail reform proponents were hoping to achieve.
“It took us decades in our state and in our nation to have the highest incarceration rate in the world, and for that to happen, a thousand decisions were made and actions taken,” he said. “So it is not going to be just one thing that changes it.”
Rosen said the assessment tools, rather than bail, will “replace a system that asked ‘How much do you have?’ to one that asks, ‘How dangerous are you?’ ”
“We’re going to get much closer to having the right people incarcerated before trial and the right people released before trial,” Rosen said. “And that’s not just morally right, but it will [also] make us safer.”
The courtroom here offers a view of the challenge.
Over the course of an hour, Bowen, the judge, who is a former public defender, moved through 13 cases. Most defendants were ordered held pending trial; when Bowen granted bail from the fixed schedule, the amount was unaffordable.
Four of those cases, or 30 percent, involved African American defendants such as Peavy, who after his public defender gathers more background on the case might get a new bail hearing. African Americans comprise just 9 percent of Contra Costa County’s population.
“This law and the Humphrey decision are together going to change the way we have done business in California a long time,” Lipetzky said. “And California doing this will really reverberate around the country.”