California ends cash bail system despite opposition from bail industry and criminal justice reformers
Before he worked for a nonprofit that helps criminal defendants and their families, Keith Boone had to navigate California’s money-based bail system himself.
In 2016, the court assigned Boone a $200,000 bail for several felony charges. Boone couldn’t pay a bail bondsman the standard 10 percent deposit by himself, so he relied on family and friends in order to post bail and stay out of jail before his trial date. His charges were ultimately dropped to a single misdemeanor, after exonerating evidence proved a portion of the case wrong.
Boone, who now works with Starting Over Inc. helping low-income defendants, and other criminal justice reform advocates believe putting people in jail before their trials if they can’t afford bail discriminates against low-income Californians.
Under the now-reformed system, after someone is charged with a crime, they can post bail and be released until their trial date. The bail, either in the form of a bond from a bail bond company or cash, acts as collateral to ensure defendants appear in court. Bail amounts depend on the severity of the crime and critics claim the system discriminates against low-income people, who often can’t afford to post their bail and either end up staying in jail or have to pay burdensome fees to bail bondsmen to be released.
Reform groups have spent the past two years advocating in the California legislature for bail reform. Senate Bill 10, the bail reform bill that passed in the State Senate and Assembly last week and was signed into law by Gov. Jerry Brown’s today, eliminates the bail industry at the state court level entirely. In its place, the new law will give county judges additional discretion to decide who can get out before their trial, a proposal that fractured the coalition of California progressives usually united in favor of criminal justice reform.
The bill’s final version resulted from a compromise its proponents made with legislators worried that ending money-based bail would release dangerous criminals onto the streets and lead to fewer people showing up for their trials. Once enacted, SB 10 will replace the bail system by giving judges additional discretion to determine which defendants pose a flight risk or threaten public safety and should be held before they’re found innocent or guilty at trial.
Boone said he opposed the revised bill because it replaces one flawed system with another. The American Civil Liberties Union and Human Rights Watch, who previously supported the effort, came out in opposition to the amended bill before State Senators and Assembly members voted on it earlier last week.
Two years ago, after Boone got into a physical altercation with a driver who he believed was following him, the courts charged him with assault and gross bodily injury and assigned him $200,000 bail. He couldn’t even afford to pay a bail bondsman 10 percent of the amount and dipped into his savings and relied on family and friends for help.
After being released, Boone returned home and spent time organizing his defense. Out of custody, he was able to confer with his attorney about an audio recording he made of the incident on his phone, which they later introduced into evidence.
At the trial, a jury lowered his charges to misdemeanor assault. And because of prison overcrowding, the judge fined him and let him out on work release.
Boone believes he and his lawyer wouldn’t have been able to argue his charges down if he hadn’t posted bail and stayed in jail before his trial. Boone said he considers himself lucky: nearly 8 out of 10 people stay in detention because they cannot afford to post bail.
To comply with the Eighth Amendment of the U.S. Constitution, which outlaws excessive bail, judges have the discretion to depart from the standard bail amounts in order to ensure bail isn’t excessively burdensome. But Boone said in practice, the amount defendants are required to post rarely matches their circumstances.
“Most of the people who are given these bails, their income is nowhere near matching,” he said. “You got families putting up their houses, people going bankrupt: It’s a racket.”
Had Boone been unable to post bail, he doesn’t believe he would have been able to get his phone recording introduced into evidence.
“Unless you’re out and able to fight,” he explained, “you can’t get the necessary paperwork. You can’t talk to your legal defense. You can’t be home with your family and have their love and support.”
In 2017, Riverside County Superior Courts assigned bail in more than 10,000 cases. The base amounts outlined in the county’s bail schedule range from $500 to $1 million. But in specific instances, such as for charges of drug possession and gang membership or prior convictions, bail amounts are increased.
Money-based bail is particularly detrimental to low-income defendants in Riverside County, which has a reputation for aggressive sentencing, Boone said.
“Riverside County itself is one of the worst. My experience as far as getting a deal there was nothing fair. They stack charges as high as they can and put on as much as possible to only leave you with taking whatever they want to offer you,” he said.
Once enacted, SB 10 could drastically alter how Californians like Boone navigate the criminal justice system.
Like Boone, local criminal justice reform advocate Vonya Quarles believes California’s bail system unfairly discriminates against poor people and needs to be reformed. But the final version of SB 10, she said, will create new problems.
Under SB 10, judges will use an algorithm to help determine whether an alleged criminal poses a flight risk in order to decide who the courts must keep in jail before trial. Quarles and other criminal justice reform advocates fear judicial discretion and the data to be used will perpetuate prejudicial outcomes and lead to more people incarcerated before their trials than under the existing system.
“We wanted to level the field in terms of people coming home or actually being considered innocent until proven guilty, but this bill has turned into something quite different,” she said. “Instead of a money bail system, we’re going to rely on judicial counsel and probation and assessment tools to determine who gets to go home.”
Quarles, who works with the Riverside County chapter of the criminal justice organization All of Us or None, said the data SB 10 proposes using to determine whether someone should be held in jail before their trial will not only produce biased outcomes but are inherently biased.
“We want to ask on the assessment tool has anyone in your family ever been arrested. Well, in some families, the answer is simply ‘No.’ In other families, the answer is a lot more likely to be ‘Yes.’ And that’s unfair,” she said. “We already know we have a justice system that’s based on race and class so how can we allow an assessment tool to come in on that foundation and continue more of the same.”
David Quintana, a lobbyist working for the California Bail Agents Association, said the old system is effective; with their bail on the line, defendants appear in court with few exceptions. And if they don’t, bail bondsmen employ bounty hunters to track people down.
With SB 10, Quintana said, “They’re attempting with a stroke of a pen to move the entire thing to the government sector.”
Without the bail industry and with the government responsible for ensuring people appear in court, more people will likely skip town, Quintana said.
“If you’re released there’s going to be no one to chase you down to make you answer for your charges,” he explained.
And although the bail industry and criminal justice reform advocates typically are at odds, Quintana agreed with how criminal justice reform advocates like Quarles and Boone characterized SB 10.
“They’re exactly right,” he said. “For people who are charged, it’s going to make them stay in jail longer.”
“This bill has managed to thread the needle by both making people stay in jail longer and allowing people the ability to not have to answer from their charges,” he said.
State Sen. Jeff Stone, R-La Quinta, voted against SB 10. He also believes giving judges additional leeway to determine who must be held before their trial will put more people in an already clogged jail system.
“Judges, who, we have to remember, are elected officials, if they have somebody who is potentially dangerous, they’re going to err on the side of incarcerating them instead of releasing them,” he explained.
The implementation of SB 10 will put bail bondsmen out of business throughout California, including William Low, who runs Lucky Bail Bonds in Indio.
Because bail bondsmen rarely work with the poorest defendants in the court system, he doesn’t think eliminating the bail industry will help the people criminal justice reform advocates say it will.
Low said he understood some of the criticisms leveled against the industry by criminal justice reform advocates, including how it affects low-income defendants. But he doesn't think the industry's problems merit eliminating it entirely.
“Like private school, or tickets to a ball game, or the type of beer you drink: If you have more money, you get better service in this country,” he said. “It’s capitalism.”
Keith Boone said the proposed replacement for money-based bail will continue relying on flawed criteria. Instead, Boone advocates for a system that would take into account the individual circumstances of defendants. Courts, he said, should consider whether a defendant is the family breadwinner, whether a high bail amount would be unfairly burdensome, and whether release would pose a public safety threat.
Under SB 10, judges will rely on the same criteria used to determine bail amounts.
“What’s taken a look at is the offense and the bail standard; that’s what’s looked at instead of the individual and what’s going on in their lives,” he said.