Governor Brown Ends Money Bail in California

BCK FILE--Last week, Governor Brown signed SB-10, making California the first state to abolish monetary bail for suspects awaiting trial.

The bill, co-authored by State Sen. Bob Hertzberg (D-Van Nuys) and Assemblyman Rob Bonta (D-Alameda), was a long time in the making. A previous bill, AB-42, never made it out of Assembly. Earlier this year in re Humphrey, The Court of Appeal held that petitioner was entitled to a new bail hearing at which the trial court inquires into and determines the defendant’s ability to pay and considers non-monetary options. SB-10 goes into effect October 2019. 

SB-10 will end the current system, which relies heavily on the bail bond industry. Instead, local courts will determine who will remain in custody and who will be released while awaiting trial, based on a court-created algorithm that takes into account severity of crime, flight risk, and likelihood of recidivism. In most cases, defendants in non-violent misdemeanor cases will be released within 12 hours.

I sat down with Criminal Justice Reform Advocate and Assembly Delegate, 46th District, Elise Moore (photo left) to talk about SB-10, her opinion on the criticisms of the bill, and concerns about criminal justice reform.

“It’s been a wild ride. Sure, the bill (SB-10) has been amended,” says Moore. “Some of the language is different but we knew by the preview and outcome in the Assembly (of AB-42) that we wouldn’t be able to get an identical bill through the Senate.”

Moore adds that although some advocates see this bill as “bait and switch,” she disagrees. “That would require intention and in the 11th hour. To pass this, all three branches have to be toe to toe and that doesn’t usually happen, the Chief Justice, the Governor, and the Legislature. To accuse the bill of being “watered down” is a false narrative,” she says. Moore adds that it’s more productive to stop stacking the language of the two bills against each other and, instead, pay attention to the ways in which the bill is applied.

“SB-10 went one step further beyond abolishing money bail to eliminate commercial bail. Other states use money bail but do not insert a for-profit industry in the middle of the justice system,” Moore explains. “The bail bond industry is a billion-dollar industry. The only two places that allowed for this are the US and the Philippines.”

The Current System

When a defendant who is assigned $50,000 bail and uses a bail bondsman, he or she pays 10% (or in this case, $5,000) to the bail bondsman who then pays the $50,000 to the court. The alternative it to remain in jail, awaiting trial.

The national bail average is $10,000 that goes directly to the court. In California, a deposit to a bail bondsman is nonrefundable, even if a defendant had been charged in a case of mistaken identity, charges were dropped, or the defendant is found not guilty.

In addition, money bail has included administrative and court  fees, as well as charges for ankle monitors and other costs.

Moore says the bail bond industry has been exploitive. Defendants are put on a payment plan with interest, which she says is a predatory lending practice. People end up taking a plea even if they did not commit a crime so they can get out and back to work.

At any time, 53,000 people are held in pretrial detention when they cannot afford bail, sometimes sitting in jail for months, awaiting trial. The majority of people in prison in the state have never been on trial. These people are too poor to buy their way out. The bail schedules in California have gone higher and higher for the past 80 years. -- Elise Moore

Risk Assessment

Low Risk

With the exception of certain felonies, including for registered sex offenders, SB-10 requires pretrial risk assessment. Courts would release defendants who are determined to be at “low risk” for public safety and failure to appear with the “least restrictive non-monetary conditions.”

Medium Risk

If a defendant is deemed “medium risk,” the pretrial services offices has the discretion to release or hold defendants, based on local county standards but costs such as ankle monitors may not be charged to the defendant.

High Risk

“High risk” defendants will remain in custody until arraignment. This group includes defendants already under court supervision, anyone who has been arrested for a restraining order violation within the past 5 years, defendants with pending cases (including misdemeanors), and anyone who has violated any condition of pretrial release in the previous 5 years.

At any time during the criminal proceedings, the prosecution has the discretion to file a motion seeking detention of the defendant pending trial, which is referred to as “preventative detention,” which would revoke a defendant’s release, pending a hearing.

Moore’s Concerns

Although Moore says ending money bail is a “huge step in the right direction,” she advises advocates, activists, and the Legislature to diligently monitor the use of risk assessment tools, demanding transparency and accountability. Risk assessments are discretionary and adjustable, which may result in unnecessary pretrial detention.

Moore is also concerned with racial bias in the justice system.” Research shows that under our current system, African Americans are assigned 35% higher bail amounts, and Latinos 19% higher bail amounts than white people accused of similar crimes. The current high rate of incarceration disproportionately affects African Americans, who are over 6.5 times as likely as white people to be incarcerated,”says Moore. “I am confident that Senator Hertzberg and the next Governor of California will continue to work diligently towards ending racial bias in our justice system.” This would include passage of a new bill that would require data collection in the justice system.

A Major Shift

The Bail Industry was big business in California. In 2016, according to the California Department of Insurance, there were approximately 3,200 licensed bail agents, 155 bail agencies, and 17 sureties in the state. From 2011-2013, bail agents posted an average of 205,000 bail bonds per year, collecting an average of $308 million in non-refundable premium fees. 

SB-10 still provides discretion as to pretrial detention based on public safety and other considerations but it ends the predatory nature of the bail bond industry, as well as the practice of detaining people based on their ability to pay.

(Beth Cone Kramer is a professional writer living in the Los Angeles area. She covers Resistance Watch and other major issues for CityWatch.)