Capitol Beat – The Bail Reform Battle

Aaron Read and Randy Perry
Legislative Advocates
Aaron Read & Associates, LLC

Bail reform is expected to be in the center ring of the criminal justice reform battles this legislative session. In April, the Assembly Public Safety Committee hearing overflowed into the halls of the Capitol. The crowd was what you would imagine: social justice organizations, law enforcement and an impressive number of bail bond agents, led by celebrity bounty hunters Duane “Dog” and Beth Chapman.

Bail, in one form or another, has been a release mechanism since medieval England. Many think it originated as a way for rulers to gain personal wealth. However, when America adapted the bail system, it was a time when the New World had just been discovered and crime was on the rise. New criminal processes, such as bail, were put in place as a deterrent to keep individuals from committing crimes. It was even written into the U.S. Constitution.

Over 60 years ago, the U.S. Congress passed the Bail Reform Act of 1966, which allows for a defendant facing trial for a non-capital offense to be released “on his personal recognizance.” In 1970, the District of Columbia addressed the issue of defendants released for non-capital offenses who were committing more crimes while on bail. In 1984, the federal justice system agreed that the public’s safety should be the guideline for releases. The Bail Reform Act of 1984 states that a person can be detained without bail if he/she:

  • Poses a risk to the community
  • May intimidate jurors or witnesses, or otherwise obstruct justice while out on bail
  • Commits a violent or drug-related crime, an offense carrying a penalty of death or life in prison, or any felony while already having a serious criminal record

Outside of these reforms, the bail system in our country has remained fairly unaltered since its origin. Beginning in 2012, California legislators have been unsuccessfully attempting to pass legislation to reform bail. However, these attempts have been more than “reform”; they were written to remove monetary bail altogether.

This year takes us down the same path. There are two identical “cashless” bail reform bills that have been introduced: AB 42 by Assemblymember Rob Bonta (D-Alameda) and SB 10 by Senator Bob Hertzberg (D-Van Nuys). The purpose of these bills is to “reduce the amount of people held in pretrial detention because of their inability to afford money bail and to require each county to establish a pretrial services agency that meets certain specifications.”

The pretrial services agency will track and conduct a risk assessment on a person arrested and booked into jail, but the person shall not be considered for release until he or she appears before a judge or magistrate for a hearing. Plainly speaking, these bills will shift the power from judges to newly created pretrial agencies in determining whether or not a defendant is a threat to the public. If the defendant is not deemed dangerous by the agency, they will be released.

This bill specifies that a person may be detained pretrial after a detention hearing if the court makes the following findings, which are consistent with the California Constitution:

  • The defendant has been charged with a capital crime, and the facts are evident or the presumption great
  • The defendant has been charged with a felony offense involving an act of violence on another person or a felony sexual assault offense on another person; the facts are evident or the presumption great; and the court finds, based upon clear and convincing evidence, that there is a substantial likelihood the person’s release would result in great bodily harm to another person or persons
  • The defendant has been charged with a felony offense; the facts are evident or the presumption great; and the court finds, based on clear and convincing evidence, that the person has threatened another with great bodily harm in the charged case and that there is a substantial likelihood that the person would carry out the threat if released

The authors of the bills are making an argument that the bail system is discriminatory. They believe that too many poor people are being held in jail because they simply cannot afford to get out, while the rich have the means to be released immediately. The opposition questions these pretrial agencies and the assessment process of determining eligibility. We want to know how these agencies and programs will succeed in guaranteeing the safety of our families.

In existing law, the bail process has promised to make public safety the primary consideration. PORAC understands that the bail system could be improved, but we also believe that removing monetary bail from our criminal justice system will inherently put our communities in danger. PORAC is opposing both measures.