Two California lawmakers said Monday they’ll make reforming the state’s money-bail system a priority in the coming year, saying it unfairly penalizes the poor.
“The fundamental presumption of innocence is absolutely at the core of foundation of the American justice system. Every day thousands of Californians who are awaiting trial are forced to be in jail because of one simple reason- they don’t have the money to get out,” state Sen. Bob Hertzberg, D-Van Nuys, said at press conference. “The current money-bail system is the modern equivalent of debtor’s prison – it criminalizes poverty, pure and simple – and that’s just not right.”
He said dangerous defendants should be held in jail until trial. But he added most defendants don’t fall into that category, and 46 percent of Americans don’t have the money to cover even a $400 emergency expense.
“Bail often runs into the thousands of dollars even for the most minor charges,” Hertzberg said. “Think about that if it meant your liberty. Our system is clogged with nonviolent people who simply cannot pay for bail or bail bondsmen.”
Shamika Wilson with the Essie Justice System currently has a husband in jail, and has firsthand knowledge of the money-bail system.
“I know what it means to take on the cost of our broken bail system personally. It is devastating to families like mine,” Wilson said
Monday. “There are few situations as difficult as when you get that phone call from someone you love saying they were falsely arrested and on the verge of losing everything if you can’t bail them out.
She said her little brother was arrested outside the family home because he “resembled someone who was reported doing robberies in our community.” His bail was set at $45,000, without regard to his financial status or that he was three credits away from finishing school.
Wilson said she was wracked with guilt because she couldn’t pull together $4,500 to pay a bail agent’s fee.
“For a family like ours, it may as well have been $10 million,” she said.
The charges were eventually dropped, but she said her family was left emotionally and financially scarred. “My brother just gave up hope. Having spent four months behind bars for something he didn’t do is just awful,” she said.
Alongside Assemblyman Rob Bonta, D-Oakland, Hertzberg introduced a pair of identical bills called The California Money Bail Reform Act of 2017, intended to reduce the number of people who are in held in jail before trial because they cannot afford to post bail.
“California’s bail system punishes poor people simply for being poor. In many cases, if you have enough money to pay your bail, you can get out regardless of whether you are a risk to the public,” Bonta said in a statement. “But if you’re poor, you have to sit in jail even when the charge is a misdemeanor like a traffic ticket. That’s not justice.”
He added, “We need evidence-based reforms that accurately assess someone’s risk to the public and their likelihood of showing up for their court hearings. Right now, money bail is just an indicator of a person’s wealth.”
While short on specifics, the legislation simply announces lawmakers’ intent to modernize California’s pretrial detention system by exploring alternatives to cash bail. The move follows other jurisdictions like the District of Columbia, which did away with the bail system in favor of allowing nonviolent defendants to await trial at home while being monitored and reminded to attend court hearings.
“The consequences of pretrial detention – which include a greater likelihood of innocent people pleading guilty to a crime, longer sentences upon conviction, loss of employment, income, and housing, and traumatic family disruption – disproportionately affect people of color and low income people,” a legal digest of the bill that reads like a letter of intent says. It notes that it is more expensive to house someone in jail than to release him or her pending trial with conditions and supervision.
According to a survey by the Board of State and Community Corrections, it costs counties a little over $100 a day to house inmates awaiting trial. And the proposed bill says that “while unnecessary pretrial detention has been found to increase the likelihood that some defendants will commit new crimes, appropriate pretrial release can reduce recidivism.”
In California, bail is determined by a fixed bail schedule set by counties at the direction of the state.
A study from Santa Clara University School of Law shows the average amount paid to a bail agency is about $1,500. Defendants must post the whole amount or pay a nonrefundable 10 percent fee to a bond company before they can be released. Those who cannot afford either can be held up to 48 hours in jail before arraignment.
This is exactly what happened to Riana Buffin and Crystal Patterson, two women arrested in October 2015 in San Francisco: Buffin on suspicion of grand theft and Patterson on suspicion of assault.
Both were released without charges after spending several days behind bars because neither could afford bail: Buffin’s bond was set at $30,000, Patterson’s at $150,000. Patterson was able to scrape together $1,500 from friends and family to pay a bail bondsman but is still on the hook to the private company for $15,000.
The women sued the city-county of San Francisco, claiming the cash-bail system unconstitutionally criminalizes poverty. Another federal putative class action was filed earlier this year in Sacramento by 50-year-old Gary Welchen, a homeless man who was arrested for burglary this past January and held on a $10,000 bond.
Phil Telfeyan, a lawyer with Equal Justice Under Law, represents the plaintiffs in both cases. In a phone interview, he said, “The intent for the bill is coming from the right place. The money-bail system definitely needs reform.”
While it’s too soon to determine what kind of changes the legislation will make, Telfeyan said he is glad the issue is starting to draw some serious attention from lawmakers.
“It’s important that the Legislature as a whole looks really closely at how money bail is going to be reformed in California,” he said. “But all of the details still need to be fleshed out.”
The ACLU is a co-sponsor of the bill, along with a broad coalition of nine other advocacy groups that includes the Essie Justice Center, Californians for Safety and Justice, the Ella Baker Center for Human Rights, the Service Employees International Union and the California Public Defenders Association.
In a phone interview, Margaret Dooley-Sammuli, the criminal justice director of the ACLU of California, said legislation has been in the works for a while.
“The ACLU and our coalition partners began talking to lawmakers about this last year. We determined last year wasn’t the year for it but we all wanted to do it,” Dooley-Sammuli said. “Everybody has just gotten to the bail reform stuff at the same time.”
She said the ACLU and the other groups will be working with lawmakers to draft the bill’s language, which will likely closely resemble reforms currently in place in the District of Columbia, Kentucky and most recently, New Jersey.
“Jurisdictions in California are moving in that direction already and we want to make it right for California. We’re a big state and everybody wants a system that works better than what we have now,” Dooley-Sammuli said.
The bill is being co-authored by Assemblymen Reginald Jones-Sawyer, Richard Bloom, David Chiu, Bill Quirk and Mark Stone.
“If a father is not allowed to be at home, not because of a risk to the community, but merely because they cannot afford bail, then something is seriously wrong. If you tour our jails, you know it is mostly young men of color in those jails, and the fact that they’re languishing there is devastating to their families, communities and to the fabric of what we want California to be,” Stone, who chairs the Assembly Judiciary Committee, said.
“The next best we can do for criminal-justice reform is money-bail reform.”