This article originally appeared on Capital & Main.
A nationwide movement that began 53 years ago to reform the pretrial incarceration and money bail process has finally reached the legislative committees and political bargaining tables in Washington and Sacramento. Reform advocates – including legislators, prosecutors, attorneys, judges and grassroots organizations – contend that the use of a money bail system for pretrial release is unfair to the poor and unsafe for the public.
In 1964, then-U.S. Attorney General Robert Kennedy told the Senate: “Every year in this country, thousands of persons are kept in jail for weeks and even months following arrest. They are not yet proven guilty. They may be no more likely to flee than you or I. But nonetheless, most of them must stay in jail because to be blunt, they cannot afford to pay for their freedom.”
Kennedy’s efforts helped pass the Criminal Justice Act of 1964 and the Bail Reform Act of 1966, which created a presumption of release before trial for most federal defendants, and mostly did away with the money bail system in federal proceedings. But not for local and state jurisdictions, which account for most of the country’s jail population and in which the money-bail system still controls the release of defendants, dangerous or not. Only two countries, the U.S. and the Philippines, currently use the money bail system, according to California legislators.
Four months ago California State Senator Bob Hertzberg (D-Van Nuys) and Assemblyman Rob Bonta (D-Oakland) introduced the California Money Bail Reform Act of 2017 — identical pieces of legislation (Senate Bill 10 and Assembly Bill 42) that would phase out excessive money bail systems statewide for most misdemeanors and some nonviolent felonies. And this past March, Los Angeles-area Congressman Ted Lieu introduced the No Money Bail Act of 2017 in Washington.
Median bail in California is $50,000. If an arrestee uses a bail bond agent, he or she has to pay the agent a nonrefundable 10 percent for release – in the case of the median bond, that’s $5,000. Even bail for many misdemeanors can run over $1,000 – still beyond the reach of many indigent defendants. This results in poor defendants spending weeks or months in jail awaiting trial, causing the loss of jobs, homes, cars and in many cases, the family’s primary breadwinner.
According to a report issued by the Public Policy Institute of California (PPIC), more than 62 percent of county jail inmates are awaiting trials or sentencing, translating into about 46,000 Californians on a daily basis, say Hertzberg and Bonta. Most remain in jail because they can’t afford bail.
“The current cash bail system is the modern equivalent of a debtor’s prison — it criminalizes poverty, pure and simple,” Hertzberg told a December news conference when he and Bonta introduced their legislation.
“In many cases,” added Bonta, “if you have enough money to pay your bail, you can get out of jail regardless of whether you are a danger to the public or a flight risk. But if you’re poor and not a flight risk or a danger to the public, you are forced to stay in jail, even when the charge is a misdemeanor. That’s not justice.”
Ato Walker of San Jose shared his own story at that same press conference.
“I was falsely accused of something and went to jail for five days,” Walker told reporters.
“My bail was $165,000 initially and through the arraignment my bail got to be down to $85,000,” he said. “And that’s after I had hundreds of letters of support from people in my community saying I was a decent human being…but still inside the courtroom the district attorney said it seems like he’s a threat to society and the judge went with that.”
Walker was released, he said, when his mother, a retired U.S. Postal Service worker, came up with the 10 percent he needed to pay a bail agent.
A choked-up Walker, who was there with his young son, said he recognized he would have had to stay in jail. “If my mother had not stepped up and taken money out of her retirement account … [she did] that so I could be there to support my family.”
When Walker eventually went to his pretrial proceeding, he said, the charges against him were dropped. But his mother lost the money she had to give a bail agent to get him out of lockup.
Walker said he appreciated the support that he got from his family and the community, but that he knew that many poor detainees don’t have that support and he wanted to publicly thank the politicians who are trying to change the current bail system.
Bonta and Hertzberg are heading a coalition of support that includes Lt. Governor Gavin Newsom, the American Civil Liberties Union, Californians for Safety and Justice, the Ella Baker Center for Human Rights, the Essie Justice Group, Western Center on Law and Poverty, Service Employees Union International, California, and others.
Instead of relying exclusively on a money bail system that forces people to pay nonrefundable deposits to private companies, Bonta and Hertzberg are seeking a system that follows the lead of the federal government, the District of Columbia’s local courts and a number of other states that have already reformed their systems.
Those systems rely mainly on pretrial services and assessment examinations to cut down on the pretrial jail population, thereby saving tax money, increasing rates of court appearances by detainees who have been bailed out and protecting the public by refusing bail to inmates deemed a danger to society or a flight risk, no matter how much money they have.
Assemblyman Richard Bloom (D-Santa Monica) a coauthor of AB 42, said at the December news conference that research has shown that “prisoners held two or three days are 22 percent more likely to fail to come to court.”
The proposed legislation, as currently written, will require counties to set up a “pretrial services agency that would be responsible for gathering information about newly arrested persons, conducting pretrial risk assessments, preparing individually tailored recommendations to the court and providing pretrial services and supervision to persons on pretrial release.” It also:
- Provides for the use of “unsecured appearance bonds,” by which defendants agree to pay a specific amount if he or she fails to appear in court.
- Gives reminders to defendants about upcoming court dates, and helps with transportation, if needed. Money bail options are included in these bills, provided the bail is the “least restrictive necessary to assure the appearance” in court, and the court must conduct an inquiry to determine the defendant’s ability to pay the bail.
- Enables prosecutors to file a motion for pretrial detention and precludes people from being eligible for pretrial release if they are charged with a capital crime, a felony involving violence or sexual assault, or if the person’s release would likely result in harm to others, or if the person had threatened harm to others.
Hertzberg’s bill passed through the Senate Public Safety Committee by a 5 to 1 vote in early April and is headed to the Senate Appropriations Committee. Bonta’s version of the bill receives a hearing Tuesday in the State Assembly’s Committee on Public Safety.
The cost to house California inmates averages about $114 per day, according to the PPIC. In Los Angeles the average cost for Fiscal Year 2015-2016 was slightly more than $178 per day, according to the Los Angeles County Sheriff’s Department, which reports that about $797 million – or 24 percent of the department’s total budget – goes to operate the county’s jail system.
There’s been no study done in L.A. County regarding how many inmates remain in its jail system because they are too poor to post a money bail, said sheriff’s spokeswoman Nicole Nishida.
Based on the experience of other locales, Bonta said, he’s learned that most nonviolent offenders will show up for their court appearances and not commit additional crimes after they’ve been released from jail without posting a money bond. “I also learned that over 50 percent of the jail cells were being taken up by people who couldn’t pay bail,” Bonta said, noting that the current money bail system is “clearly discriminatory against the poor and people of color.”
In addition to a mandatory pretrial risk assessment examination, Bonta told Capital & Main, he’s also open to using ankle monitoring systems and even small bail amounts — for example, $100 — as a very last resort.
Beth Chapman, the wife and business partner of the reality TV bounty hunter, Duane “Dog’ Chapman, has testified before a federal Court of Appeals panel that “People are not in jail because they’re poor. They are trying to paint a picture that all poor people are languishing in jail, and it just isn’t true.” She has also appeared in Breitbart News interviews on the subject of bail reform, which the right-wing site has connected to plots allegedly hatched by billionaire George Soros and others.
Capital & Main’s repeated phone calls for comment to the Professional Bail Agents of the United States, a trade group Beth Chapman heads, were not returned. The organization’s website, though, warns in red letters that “The bail industry is under attack!” Capital & Main’s calls to another bail-bonds trade organization, the California Bail Agents Association, were also not returned.
Jeff Clayton is the executive director of the Lakewood, Colorado-based American Bail Coalition, a 10-year-old trade association representing insurance underwriters of bail bonds across the country. In California, he said, all bail bonds must be underwritten by an insurance company.
Clayton told Capital & Main that nationwide, the bail bond industry is a multibillion dollar business and that lobbying efforts against the California and House versions of bail reform are in full swing. He insisted the vast majority of bonds issued help guarantee that defendants would show up for court.
Clayton acknowledged that there were problems related to the top 10 percent of bonds issued to defendants who could be dangerous or flight risks, and to the bottom 10 percent of indigent defendants.
He said that the industry would be open to working with legislatures to fix those problems, especially regarding misdemeanor defendants.
Clayton also said there were discussions underway with Hertzberg and Bonta’s offices on their proposed bills and that he felt confident that a “viable compromise,” which would maintain the money bail process in California, could be worked out.
Ted Lieu’s previous No Money Bail Act died in the House last year. His 2017 version is short and straightforward. It would prohibit the payment of money as a condition of pretrial release in any federal case. (Federal judges can still order property bonds as a condition of release.) It would also amend the Omnibus Crime Control and Safe Streets Act of 1968 to make any state that did not reform its bail system within three years of passage and signing of this law, ineligible for funding under the Edward Byrne Memorial Justice Assistance Grant (JAG) program.
In Fiscal Year 2016 California received more than $28.9 million in JAG awards, with more than $10.7 million going to counties and cities, and more than $18.2 million going to the California Board of State and Community Corrections, according to Lieu’s office.
“Some conservatives and libertarians have shown interest because reform will save tax money and the bill is flexible on how states can handle the reform process,” Lieu said. “Kentucky is a very red state and yet they have instituted reform measures in their bail system.”
The U.S. Justice Department, under former President Barack Obama and Attorney General Eric Holder, also weighed into the debate over bail reform, filing friend-of-the-court briefs in several cases in Georgia and Alabama in 2015 and 2016 — calling money bail systems that continue to jail defendants because they are poor unconstitutional. Civil rights division attorneys filed court papers stating categorically that “bail practices that incarcerate indigent individuals before trial solely because of their inability to pay for their release violate the Fourteenth Amendment.” Justice Department attorneys also stated, “Fixed bail schedules that allow for the pretrial release of only those who can pay, without accounting for the ability to pay unlawfully discriminate based on indigence.”
Washington, DC’s local courts have the most experience using a pretrial release system that is based on inmate assessments rather than money bail. Cliff Keenan is the director of DC’s Pretrial Services Agency, a federally funded, independent entity within the Court Services and Offender Supervision Agency charged with formulating release recommendations and providing supervision and services to defendants awaiting trial. His office handles some 22,000 cases a year, including 4,000 felonies and 17,000 misdemeanors.
Keenan told Capital & Main that the District stopped using any money as a condition of pretrial release in 1992, when a new Bail Reform Act mandated that defendants would receive a hearing with 24 hours of their detention to determine their release status. The act’s reforms have also enabled judges to hold defendants without bail, Keenan said, “if they were determined to be a flight risk or a danger to the community or to witnesses in their case.”
While there have been failures, Keenan pointed to his office’s latest published figures showing that “91 percent of released defendants remained arrest-free while their cases were adjudicated; 98 percent of released defendants were not rearrested for a crime of violence while in the community pending trial; 90 percent of released defendants made all scheduled court appearances and 88 percent of released defendants remained on release at the conclusion of their pretrial status.”
New Jersey, the most recent state to reform its former money bail release system, began its new system in January. Elie Honig, New Jersey’s Director of the Division of Criminal Justice, told Capital & Main the bail reform process began in 2014 and first required a vote to change the state’s constitution so that dangerous criminals charged with non-capital crimes could be held without bail after their arrest.
“The reforms have focused more of our attention on dangerous cases – and in those cases prosecutors are fighting hard for detention without bail,” Honig said. The first report on the impact of the state’s reforms is due by the end of June.
New Jersey’s new system uses a computerized Public Safety Assessment (PSA), six-point tool to quickly issue a score for each defendant based on various risk factors, including the seriousness of the alleged crime, and the defendant’s criminal and court history. The PSA tool, Honig said, was not the endpoint but a starting line for determining whether a defendant could be safely released. The state’s pretrial services agency is then charged with providing a full assessment of a defendant’s risk for release before a judge determines the final outcome.
The new law also mandates a speedy trial system for defendants, Honig continued, requiring that a detained defendant must be arraigned within 90 days of his or her arrest and the case brought to trial within 180 days.
Neither L.A. County District Attorney Jackie Lacey nor the U.S. Attorney’s office in Los Angeles would comment on any of the pending bail reform legislation offered by Lieu, Hertzberg or Bonta. Los Angeles County Sheriff’s spokeswoman Nicole Nishida told Capital & Main it was “too early [for the sheriff] to comment on this [California legislation] since the language is still being finalized by Senator Hertzberg and Assemblyman Bonta.”
So far, law enforcement opposition includes the Association for Deputy District Attorneys, the Riverside Sheriffs’ Association several uniformed-officer unions.
“I don’t expect Lieu’s legislation to go anywhere,” said the American Bail Coalition’s Jeff Clayton. “States make more money off [taxing] the bail bond industry than they would lose in JAG grants, so I don’t think you can coerce them into making reforms.” Besides, he said, “Cash bonds are tools that judges can use to insure that justice is done. You want to give judges more tools, not take them away.”
Despite a Republican-controlled House and Senate, and the election of Donald Trump as president and a Justice Department now overseen by a hardline conservative, former Alabama U.S. Senator Jeff Sessions, Congressman Lieu remains optimistic about his bill’s prospects.
Echoing Bonta and Hertzberg’s assertions that a money bail system was patently discriminatory against the poor and people of color, Lieu noted that there are more than 450,000 people nationwide now sitting in jail — many if not most of whom are there just because they can’t afford to post bail. “America’s criminal justice system isn’t just broken,” Lieu said, “it violates our nation’s core values.”