In a sweeping reform, California will end the cash bail system. Instead of requiring a defendant to pay to secure a release before trial, their release from custody will depend on a court's assessment of their risk to public safety. This would make California the first state to eliminate a money bail system, and it's known as the “California Money Bail Reform Act” or Senate Bill 10.
Governor Jerry Brown signed it in August 2018, and it will become effective in October 2019. In basic terms, bail is a type of punishment against a defendant before they have ever been convicted of a crime. Under California's current bail system, a court determines whether bail is appropriate and the specific amount.
If a defendant is able to post bail with cash or through a bail bondsman, they will be released from jail and given a date to appear in court. If a defendant is unable to post bail, they will remain in custody throughout the entire process of their criminal proceedings in court.
This money bail system has long been criticized based on inequality, as defendants who can afford bail are quickly released, but those who can't afford bail will sit in jail. Essentially, critics claim the wealthy have been able to purchase their freedom regardless of their risk to the public, while the poor who pose no public safety risk remain in custody.
Threat to Society
The new system eliminates money bail. Now, a Los Angeles County criminal court will determine whether a defendant should be released based on their perceived threat to society. This fair and impartial assessment will classify a defendant as low, moderate, or high risk, ensuring a just process for all.
Clearly, those defendants classified as low or moderate risk have a better chance of release. Any defendant who is classified as high risk or arrested for a violent felony crime will not be released.
If you have been arrested and charged with a crime, contact the Los Angeles criminal defense attorneys at Eisner Gorin LLP to review the details of your case. Let's take a closer look below at how and why California decided to abandon its money bail system and implement a new bail law.
California Court of Appeals – Case of In re Humphrey
In its recent decision in the case of In re Humphrey, the California Court of Appeals condemned what it termed “preventive detention,” meaning the practice of setting a practically unattainable bail amount for a defendant who had not yet been convicted of a crime.
By setting a cash bail in an amount that is simply unfeasible for almost any criminal defendant to post, courts guarantee that a defendant remains incarcerated pending trial.
Critics of this system of cash bail have argued for years that the cash bail system is rife with abuses such as those identified in Humphrey and, whether intended or not, create a two-tiered system in which wealthy defendants fight their cases from outside custody where poor defendants facing the same charges await trial in county jail. This system has been seen as perpetuating inequality in the criminal justice system.
Besides the obvious inconvenience and stress caused by incarceration, defendants who remain in custody pretrial are far more likely to accept a plea bargain, potentially not in their best interests, simply to obtain a quicker release. The new system aims to reduce this pressure, offering defendants a fair chance to present their case.
California Senate Bill 10
Faced with mounting criticism of the current bail regime, State legislators passed SB 10, Hertzberg, a comprehensive overhaul of the California pretrial bail system, which takes effect in October 2019. Governor Brown signed the bill into law in August 2018, marking a significant and thorough change in the state's legal system.
The most obvious change in the law created by SB 10 is the complete elimination of the cash bail system. However, the bill does not simply allow every individual charged with a crime to remain free pending trial.
Rather, it replaces cash bail with a risk assessment system largely operated by the pretrial services department. Several critics have forecast that this new system may actually result in more defendants awaiting trial in custody rather than fewer.
Risk Assessment
The cornerstone of the new bail system is the pretrial services risk assessment, which places arrested individuals into one of several risk categories. This assessment considers factors such as the nature of the crime, the defendant's criminal history, and their potential risk to public safety if released. Whether or not an individual is released pretrial, and on what conditions or combination of conditions, is based almost entirely on this risk category determination.
For those accused of non-violent, minor misdemeanor offenses, the news is good. Under SB 10, the presumption is that such individuals should be booked and released within 12 hours, without being taken into custody or required to post bail.
The main questions the court will need to answer to determine the most appropriate classification include the following:
- Was the defendant arrested for a violent or non-violent crime?
- Did the victim sustain any injuries?
- What was the defendant's demeanor during the risk assessment?
- What is the defendant's criminal history?
- Is the defendant a public safety risk if released?
Defendants who are arrested for low-level, non-violent crimes and have a limited criminal history will typically have a better chance of release.
California Penal Code § 1320.10
For many other misdemeanors, much less felonies, however, the story is different. New California Penal Code § 1320.10 includes an extensive list of circumstances under which individuals should not be released prior to arraignment. This means that individuals arrested for these offenses may have to remain in custody until their arraignment, at which a judge will determine their release conditions.
Keep in mind that under the current cash bail system, an individual who can post bail, typically with the assistance of a bail bond agent, can be released almost immediately after arrest.
Some of these prohibited individuals are less controversial, such as individuals arrested for a new serious or violent felony (Penal Code § 1320.10(e)(13)), or those arrested for a new crime while pending trial or sentencing on a previous misdemeanor or felony (Penal Code § 1320.10(e)(8)).
Others have the very real possibility of resulting in the pretrial detention of individuals who, under the previous system, would have likely been released on relatively inexpensive cash bail.
This category includes “[a] person arrested for a violation of any type of restraining order within the past five years.” (Penal Code § 1320.10(e)(6)). Also prohibited from pretrial release are those arrested for any misdemeanor domestic violence charge. (Penal Code § 1320.10(e)(3)(A), (B)).
Under the prior system, these arrestees could generally obtain release within 6 to 12 hours, depending on the speed of the booking procedure, by posting a bail bond of between $20,000 and $50,000.
Under the new system, they would remain in custody prior to arraignment, where defense counsel and the prosecutor would argue before the judge about whether conditions of release would be adequate to protect public safety and ensure the defendant's appearance in court.
This article provides a brief outline of the new bail procedures that will take effect in October 2019. This is a new area of law that is still in the process of being finalized.
If you or someone you know has questions or concerns about the changes to the bail system, consider consulting with our experienced Los Angeles criminal defense attorneys for guidance. Eisner Gorin LLP 1875 Century Park E #705 Los Angeles, CA 90067 310-328-3776 www.egattorneys.com
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