HALF A MILLION Americans are held in pretrial detention at any given time, most of them for nonviolent crimes, many of them innocent. For too long, one of the reasons so many have been locked up awaiting their day in court has been money — or the lack thereof — as defendants’ capability to post bail has determined whether they languish behind bars before their guilt or innocence is judged. People can lose their jobs, homes and families. The temptation is strong to admit guilt simply to escape the misery of rotting in a lockup while the rest of one’s life crumbles. Charged with identical crimes, the wealthy need not face that choice.
The federal government moved to eliminate this glaring inequity in 1992, all but ending money bail in its courts. Yet no state followed — until now. California Gov. Jerry Brown (D) last week signed a bill ending money bail by October 2019 in the nation’s most populous state. Instead of submitting to a rigid bail schedule, defendants will be sorted in various ways, with those deemed less risky routinely released. Many Californians charged with misdemeanors might spend all of 12 hours in a lockup and never need see a judge before pretrial release. Others will incur more scrutiny, including a risk-assessment algorithm, but those found to be low- and medium-risk will generally be allowed to leave jail under varying degrees of supervision.
Those who worry that this is a dangerous reform can look to the nation’s capital. Washington is familiar with the challenges of administering a dense metropolitan area with pockets of deep poverty and crime. Yet the District releases nearly all defendants back onto the streets pending the resolution of their charges. Release can come on the condition that defendants wear ankle bracelets, check in with city officials and take routine drug tests. While no system will be devoid of problems — because, say, an ankle bracelet is misapplied — almost all of those released stay out of trouble during their pretrial period.
The real problem with California’s new law, according to the American Civil Liberties Union and other civil rights groups, is that it would continue locking up a lot of people. These advocates complain that the state’s new system may not prioritize people charged with minor crimes for release if they are on probation or parole, and they worry that an overly broad class of Californians would be presumed too dangerous for release. Judges will consider cases individually so they can balance the system if it, indeed, tilts toward jailing too many people. This may be hard; California judges who are subject to election and recall might not want to risk releasing the wrong person. But it will be their responsibility to make pretrial detention decisions with the spirit of the new law in mind.
Meanwhile, other states should take notes on the District’s and California’s experiences. The question should not be whether to end their money bail systems, but how.