Low-risk criminal defendants could get out of jail before trial by depositing 10% of their bail amount with the court instead of with a private bond agency, under a bill approved by the state Senate. They’d get the money back after showing up for their mandatory court appearances. That would be far better than the status quo, under which the 10% paid to the bail bond agency is never returned, even if charges are dropped or the defendant is acquitted. Gov. Jerry Brown said he would sign the bill if it came to his desk.
All that would be great, except for the fact that the Senate vote took place 39 years ago and the bill never made it to Brown. Bail reform efforts in California have been consistently blocked for four decades by the bail bond industry, whose clout with lawmakers has made a mockery of the fundamental American principle that liberty and justice belong to the poor as much as to the wealthy. Our shame is not so much that we have failed to live up to that principle as that we too often seem to have stopped trying.
California’s bail system punishes the poverty-stricken criminal defendant by presenting this choice: Stay locked up for months pending trial and risk losing your job, your home and perhaps your children; take on crippling debt to pay a bondsman your nonrefundable bail; or plead guilty just to be able to go home sooner. Meanwhile, the wealthy can buy their freedom. The very words sound like a line from an old English ballad about the injustices of centuries past.
Last year, the state Senate again passed a bail reform bill and the bail bond industry again is pushing back. So let’s be certain that Assembly members and Brown hear this message: Move. Now. Dismantle the cash bail system that sifts the accused and divides them, and their fate, by the amount of money they have. Pass and sign SB 10, the pretrial release bill. Join the handful of states and the vast majority of nations that have eliminated nonrefundable cash bail, and leave the Philippines — and most U.S. states — as the only places on the planet where private companies still make their fortunes off a glaring failure in the justice system and the desperation of defendants with little money.
Some of the arguments from opponents are simply daft. For example: The 8th Amendment guarantees bail. That’s true, but what it actually says is that bail shall not be “excessive.” And although it doesn’t define excessive bail, if that term means anything at all it can mean only bail that the defendant cannot pay or that corners him into relinquishing his rights.
Or: The current system keeps us safe. But of course it keeps us safe only from defendants who are too poor to bail out while putting us at the mercy of defendants with money.
Or: The Constitution doesn’t grant the presumption of innocence to defendants before they are found guilty. And perhaps it doesn’t, not in those particular words. But the presumption of innocence and the notion that all people are created equal and are entitled to equal justice under the law even if they don’t have equal bank accounts — these are indispensable elements of the American creed.
Some arguments are fair enough. Yes, if we move from a bail system to a system in which people are held or released depending on their level of risk, counties will need pretrial services offices to determine which defendants are too dangerous to release, which ones can be released but monitored, and which ones can be let go on their own recognizance, and yes, such offices will cost money. Injustice is cheap; justice requires an investment. And yes, computerized risk-assessment algorithms are imperfect. But the current standardized bail “schedules” that assign amounts of money to particular crimes rather than an assessment of the defendant are a bad joke.
There are many unfair ways to sort defendants before trial. We can release the right-handed and jail the lefties, or let the brown-eyed go and keep the blues. Or we can release the white defendants and jail the black and the brown — and indeed, dividing defendants by their wealth has that racial result, whether intended or otherwise, and is every bit as random as the other foolish criteria.
Nearly 40 years after the last attempt, it is well past time for lawmakers and the governor to adopt bail reform. They should pass and sign SB 10, and bring the promise of equal justice a step closer to reality.