This week, California became the first state to abolish money bail. In October 2019, the state will replace it with a risk assessment system that hasn’t yet been developed. Criminal justice reform groups had campaigned to end money bail and to reduce the number of people kept in jail before trial. Last week, though, bail opponents pulled their support after last-minute changes to the bill — changes that might increase the number of people jailed while awaiting trial.
Here’s what you need to know.
What’s money bail?
In most states, someone arrested for a crime can deposit money with the court as a guarantee that they won’t go on the lam. In the United States, defendants who can’t pay the full amount (which can be thousands or even millions of dollars) can pay a percentage to a bail bonds agent. The agent posts the bond and keeps that percentage as a fee.
Who wants to abolish money bail and why?
Civil liberties and racial justice groups have been pushing to abolish money bail for years. Some high-profile cases have helped gain attention for that campaign.
Kalief Browder, a 16-year-old from the Bronx, spent nearly three years in jail awaiting trial after he was charged with a theft worth $700, which he insisted he did not commit. His family could not afford the $900 for a bail bondsman. Browder spent two of the three years in solitary confinement — and later committed suicide.
More recently, a San Francisco man spent a year in jail after allegedly stealing $5 and a bottle of cologne and threatening to cover a man’s head with a pillowcase. With bail set at $350,000, he spent most of a year in jail.
The high costs of bail bonds can financially destabilize low-income families. Defendants who can’t afford bail may spend long periods awaiting trial for minor offenses, losing jobs, housing and sometimes even custody of their children. Bail also pushes many to plead guilty rather than wait indefinitely in jail for trial. Because black, Latinx and Native Americans are disproportionately likely to be arrested, they’re also disproportionately affected by money bail.
So who’s in favor of money bail? Almost no one advocates for it except the bail bonds agents and insurance companies that make money from it. However, many politicians and judges worry about releasing more people as they await trial.
What does the California measure do?
The California law gets rid of money bail — and replaces it with pretrial assessments that will classify people’s risk of offending while free. People with “low” risk will be released. Jurisdictions can choose whether to release people with “medium” risk. Anyone at “substantial” risk would be jailed until they’re arraigned.
The California law also creates a “presumption” that people will be held in jail if charged with violent felonies, some sex crimes or a third DUI (driving under the influence) in 10 years, as will those who have broken the conditions of pretrial release in the last five years. It lets prosecutors seek “preventive detention” and authorizes judges to grant it.
Criminal justice reformers originally supported SB10. Why did they change their minds?
Criminal justice reform groups like the ACLU, SV De-Bug and the Essie Justice Group initially campaigned for the proposed California law. But last-minute changes, like the addition of the risk assessment system, made them worry that the bill would actually keep more people locked up.
For one thing, the San Francisco man who stole $5 and a bottle of cologne — whose case was widely cited in coverage of the California bill — would still likely be detained, because he was charged with robbery, a violent felony. For people classified as high risk or in the categories the law names, people who would previously have been offered bail might not be able to get out at all.
Reformers also worry that the law allows judges to impose onerous requirements for release, like electronic monitoring, weekly check-ins, home detention or drug testing. These restrict the lives of people who have not been convicted of crimes, and can make it hard for defendants to keep their jobs or care for their children. They can also be difficult to comply with — meaning defendants could easily end up back in jail.
In short, the law still allows judges and prosecutors to detain people waiting trial. Judges and prosecutors are still risking public backlash if someone released before trial commits a crime. Thus, a law that criminal justice reformers hoped would make the system less punitive may instead make it more so.
Will the new risk assessment system work?
Statistical systems for predicting the risk of releasing an arrested person look like a great way to sidestep human biases. But reformers have at least two big concerns.
First, even if these systems don’t explicitly look at race and class, they sometimes look at factors like neighborhood crime rates that reveal a person’s race because of patterns of residential segregation.
Moreover, these systems almost always take into account prior arrests and convictions. Racial biases in the criminal justice system mean that black Americans are more likely than whites to be arrested or convicted for the same behaviors. Thus, a black defendant may look “riskier” than a white one — even if they lived comparable lives.
Second, the categories “low,” “medium” and “high” risk might not match how most people use those words. In the most commonly used state statistical system, only 8.6 percent of defendants classified as high risk were again arrested for a violent crime. In a recent study of the federal risk assessment system, less than 5 percent of the people in the highest of five risk categories failed to appear for court, and an even smaller percentage were rearrested for a violent crime.
In other words, people may end up sitting in jail for a long time, even if the courts think there’s a 95 percent chance they won’t skip court or get arrested.
For these reasons, the California law doesn’t satisfy the reform coalition that originally supported it.
Laurel Eckhouse (@l_eckhouse) is an assistant professor of political science at the University of Denver.