A legislative committee this week pushed further toward law nearly identical California State Senate and Assembly bills that would in many cases eliminate the imposition of monetary bail on criminal defendants.
Senator Robert Hertzberg (D-Van Nuys) and Assemblyman Rob Bonta, D-Oakland have authored legislation that, if passed, either does away with bail on accused criminals involved in non-violent acts or takes the income of the accused into consideration when setting bail. Under the law, instead of necessarily being consigned into detention facilities, those arrested or awaiting trial would be placed into home detention and/or be outfitted with electronic monitoring ankle bracelets that would allow authorities to monitor their location and travel.
At present, California law gives judges some degree of latitude with regard to the decision to impose bail but requires that they remain within the relatively rigid standards laid out in pre-determined but slightly different bail schedules for each of California’s 58 counties.
The legislation would give officials at the county level the discretion of imposing bail and releasing those arrested upon a determination that they represent little or no risk to public safety.
According to the California Legislative Counsel, “Existing law provides for the procedure of approving and accepting bail, and issuing an order for the appearance and release of an arrested person. Existing law requires that bail be set in a fixed amount, as specified, and requires, in setting, reducing, or denying bail, a judge or magistrate take into consideration the protection of the public, the seriousness of the offense charged, the previous criminal record of the defendant, and the probability of his or her appearing at trial or at a hearing of the case. Under existing law, the magistrate or commissioner to whom the application is made is authorized to set bail in an amount that he or she deems sufficient to ensure the defendant’s appearance or to ensure the protection of a victim, or family member of a victim, of domestic violence, and to set bail on the terms and conditions that he or she, in his or her discretion, deems appropriate, or he or she may authorize the defendant’s release on his or her own recognizance. Existing law provides that a defendant being held for a misdemeanor offense is entitled to be released on his or her own recognizance, unless the court makes a finding on the record that his or her release would compromise public safety or would not reasonably ensure the appearance of the defendant as required.”
With regard to AB 42, which is a companion bill SB 10, the California Legislative Counsel states, “This bill would implement a revised pretrial release procedure. The bill would require, except when a person is arrested for certain felonies, that a pretrial services agency conduct a pretrial risk assessment on an arrested person and prepare a pretrial services report that includes the results of the pretrial risk assessment and recommendations on conditions of release for the person immediately upon booking. The bill would require the pretrial services agency to transmit the report to a magistrate, judge, or court commissioner and the magistrate, judge, or court commissioner, within an unspecified number of hours, to issue an oral or written order to release the person, with or without release conditions, subject to the person signing a specified release agreement.”
Furthermore, according to the Legislative Counsel, “The bill would require, if a person is in custody at the time of his or her arraignment, the judge or magistrate to consider the pretrial services report and any relevant information provided by the prosecuting attorney or the defendant and to order the pretrial release of the person, with or without conditions, subject to the person signing a specified release agreement. If the judge or magistrate determines that pretrial release, with or without conditions, will not reasonably assure the appearance of the person in court as required, the bill would require the judge or magistrate to set monetary bail at the least restrictive level necessary to assure the appearance of the defendant in court as required. The bill would authorize, if the judge or magistrate has set monetary bail, the person to execute an unsecured appearance bond, execute a secured appearance bond, or deposit a percentage of the sum mentioned in the order setting monetary bail.”
The new legislation is not universally applicable to those arrested and it authorizes a prosecuting attorney to file a motion seeking pretrial detention of individuals arrested, jailed or awaiting trial with regard to serious crimes, including all capital crimes when the prosecuting attorney alleges that the facts are evident or the presumption of guilt overwhelming. Upon the filing of such a motion by a prosecutor, the legislation requires that there be a hearing to determine whether the person pending trial should be released, unless the person in custody waives the hearing. The bill requires that a court make at least one of several specified findings to justify someone being detained pretrial.
All of the state’s counties would be required to establish a pretrial services agency to gather information about arrested individuals, conduct pretrial risk assessments, and prepare individually tailored recommendations to the court regarding release options and conditions.
Corrin Rankin, the spokeswoman and legislative affairs co-chair for the California Bail Agents Association told the Sentinel, “From where we sit, we see this as history repeating itself. In 1978 AB 2 was introduced by Majority Leader Howard Berman aimed to do the exact same thing as AB42 and SB10. Governor Brown passed the bill and after five years the bill sunset and was realized to be a complete failure. There is a long history of the judicial pendulum swinging too far to the right and then too far to the left. For some reason, in California we can’t get it down the middle where it should be. Assembly Bill 2 failed, and if this passes, which I do not believe it will, in three to five years’ time it will fail.”
Rankin continued, “Lawmakers implemented something very similar to this in New Jersey in January and about 30 days later they discovered they couldn’t pay for it and now they [the New Jersey Legislature] are talking about raising property taxes to cover the cost. This sounds warm and fuzzy and for a lot of people it sounds like something everyone should support, but when it comes down to raising people’s property taxes, then people will have a different view about it. What bail bondsmen do is they assure the person who has been accused shows up for court. We have the ability under the current law to pick them up and take them to jail or to court.”
AB 42 and SB 10 will transfer that function and law enforcement, will have to pick up the slack, Rankin said, resulting in large numbers of criminal defendants who will not show up in court, either for trial or sentencing.
“That [serving bench warrants on those who fail to appear] is a low priority for the police,” she said. “These will go to the back of the line of what police officers do. So the odds are the courts will be waiting a long, long time for law enforcement officers to go pick those who fail to appear in court up. That is what bail bondsmen do. We actively pick them up from their homes or find them wherever they are and return them to court. That is one of the services we provide. In the current bills there is no provision or legal authority pretrial to act in that manner. As bail bondsmen, our accountability and our performance requires that we deliver every single day. Just about everybody shows up at their first court appearance. It is down the line, where they don’t like where their case is headed or about to be sentenced that they skip out.”
With regard to the legislature, Rankin said, “I appreciate what they are trying to do. I understand the need to improve the bail system. Unfortunately, as this bill is written, it just needs to be scrapped. They need to bring us to the table so we can shape something that will work, not something that will be shown to be a complete failure within three to five years. So we’re not going to just sit back [and let this pass]. We want to educate them and let them know that this is the exact same thing that failed before. Why do something that has already proved to be a failure? The way it is written now, the counties will not be able to bear the cost. Why do they [legislative reformers] have such a problem with the way it is now? This is something, where, if you cannot afford it, you buy an insurance policy, which is what bail is, a type of insurance.”
Rankin also took issue with the concept of putting the criminally accused under the supervision of the state, which she likened to the policy of a “Third World” regime. “You are talking about ankle monitors and urine tests,” she said. “Who wants to live like that? That is not freedom. These are people who have been accused of a crime but haven’t been convicted who will be living like a parolee. That is not helping people. We should all be working together to do the right thing for society. Their [lawmakers’] argument is that this [AB 42 & SB 10] is in the best interests of the minority communities. That argument baffles me because sixty percent of the bail bond businesses in California are minority and/or woman owned. We’re talking about hardworking people who abide by the law and work within the system. The penal code encourages people to own their own businesses. Now we have members of the legislature, elected officials, slandering our profession in the press every day. These are legal businesses that we operate. We provide a service that is outlined in the California Constitution Article 1 Section 12. We invested into our businesses because the California Constitution says surety bail shall be required.
“They [lawmakers] are now willing to circumvent the Constitution and sacrifice our community of hard working, law abiding minority business owners, supposedly in order to ‘help minorities,’” Rankin said. “In other words they are willing to hurt minorities in order to help minorities. It makes no sense. Many of us have made years of investments and have long term leases on office spaces. What are we supposed to do after, as Assemblyman Rob Bonta likes to put it, they starve us out? Are we supposed to go on welfare or file bankruptcy? Will we be considered a minority community worthy of consideration then? This legislation, if it passes, will put many minority entrepreneurs out of business with no regard to the sacrifices we’ve made for our communities. The California Constitution provides for surety bail. That is why we are in this business to begin with. The State of California tells us in the Constitution that this method of pretrial release is what they want. That is why we do it.”
There has been what is referred to as bail bond reform in Washington, D.C., Kentucky and New Jersey. Substantial efforts in that direction have also taken place in San Francisco, Santa Clara and Santa Cruz counties. This reform movement grows out of the perceived need to limit mass incarceration and eliminate disparities in the justice system’s treatment of the wealthy versus the poor. This movement is reflected in the consideration that since 2012, every state in the nation has made adjustments to pre-trial custody release policies. Statistically, approaching 40 percent of those arrested and jailed are not convicted of the crime for which they are being held. In a significant number of those cases, an individual released from custody on bail put up by a bondsman loses in its entirety the percentage paid to the bondsman to secure the bail.
Bail is money put forth or pledged to ensure that a suspect who is released from custody will appear for trial or later court dates. When the bail set is beyond an arrestee’s means, he or she will often arrange with a bail company to put the bond up, typically for a fee that is near ten percent of the bail amount. If the accused fails to appear, the bond is forfeited to the state. Once the individual is acquitted or the charges are dropped or the person is convicted and sentenced, the bail money put up on his or her behalf is returned, either to the bail company that put up the money or the person charged, if he or she was able to collect the money on his or her own. In the case where an individual obtained bail from a bail bond company, even upon acquittal, exoneration or the dropping of charges, the ten percent paid to the bail bond company is not returned to him or her. In this way, an innocent person can lose money by being processed through the justice system.
According to the Public Policy Institute of California, the median bail in California is $50,000.
Moreover, reformers maintain, the financial onerousness of the bail system can result in the innocent remaining incarcerated until they are vindicated, such that many who are not in fact guilty of a crime plead guilty to get out of jail.