Photo Credit: Public Policy Institute of California (PPIC)
By Shirley L. Smith Updated
When she was 12 years old, Jessica Bartholow vividly recalls how she and her 14-year-old sister had to fend for themselves for three days after her mother was arrested and jailed in California for check fraud. “We were so poor that we didn’t have a telephone or food in the house,” Bartholow said, much less money for bail.
Bartholow’s father, a Vietnam veteran, was incapable of taking care of the family due to his debilitating post-traumatic stress condition. Fortunately, she said, “my mother was able to reach my grandparents who bailed her out.”
In the U.S., everyone is presumed innocent until proven guilty. Therefore, everyone is entitled to bail, except those charged with certain serious felonies who, based on the evidence, would pose a safety or flight risk. But people on the lower end of the economic scale, like Bartholow’s mom, are often denied their fundamental right to bail for no other reason than their inability to pay for their freedom. Unless a judge releases them on their own recognizance or on a supervised release, poor people and those with limited financial means who are accused of a crime and cannot post bail, or a portion of their bail, are held in jail until trial or the resolution of their case.
Research shows that thousands of poor people and those with low incomes, who have not been convicted of a crime and pose no threat to the public, are forced to remain in jail for weeks, months and even years while waiting to go to trial because they cannot afford bail. Most of these individuals are accused of minor offenses. While in jail, many lose their jobs and housing, and their children are placed into an overburdened foster-care system. Meanwhile, wealthy people, who may pose a greater risk to public safety but can afford bail, are permitted to go home before trial.
To eradicate the economic disparity in California’s pretrial system, the state’s executive, judicial and legislative branches of government came together to draft Senate Bill 10 (SB 10), the California Money Bail Reform Act. SB 10 abolishes the money-bail system and replaces it with a risk-assessment system that includes electronic supervision programs like ankle bracelets and GPS home monitoring. The bill was signed into law in August by outgoing governor Jerry Brown who has long-held that the money-bail system constitutes an unfair “tax on poor people in California.”
“California is the first state to completely eliminate the money-bail system,” said Bartholow, who is now a passionate policy advocate at the Western Center on Law & Poverty which co-sponsored SB 10. “The bill also establishes that there will be no monetary conditions of release allowed like paying for ankle monitors and other pretrial services.”
Bail Agencies May Halt Implementation of the Law
The law is slated to go into effect on Oct. 1, 2019, but California’s lucrative bail industry, which will be decimated by the law, have formed a coalition to repeal it. The coalition, named Californians Against the Reckless Bail Scheme, consists of bail industry leaders, public safety leaders, criminal justice reformers, crime victims’ advocates and concerned citizens.
The coalition had until Nov. 26 to submit the 365,880 signatures it needs from registered voters in California for a referendum. On Nov. 20, the alliance, sponsored by the American Bail Coalition, announced that it has obtained about 577,000 signatures.
“The campaign aims to show voters that this new law is unjust and replaces California’s current bail system with a dangerous and untested scheme that would make the state less safe while increasing the numbers of those unfairly incarcerated,” coalition members said in a news release.
The signatures still need to be verified by the counties, a process that can take 38 to 68 working days, said Sam Mahood, spokesperson for California’s Secretary of State Alex Padilla. If the projected number of valid signatures is greater than 110 percent of the required number of signatures, Mahood said, the measure would qualify to be placed on the November 2020 ballot. And, the implementation of the bail-reform law would be put on hold until voters get a chance to weigh in.
Bartholow said the bail agencies’ coalition is backed by profit-seeking insurance companies. While Bartholow sympathizes with people in the bail industry who will lose their jobs, she said, “nobody should profit from someone being in jail.”
Proponents of the new bail-reform law contend that it will create a more equitable, safer system because all decisions on whether to release people from jail pending trial will be based on their threat to public safety and flight risk rather than their ability to pay a bail. The average bail in California is $50,000, said Katie Hanzlik, press secretary for Sen. Robert Hertzberg, the primary author of SB 10.
“For too long, our system has allowed the wealthy to purchase their freedom regardless of their risk, while the poor who pose no danger languish in jail,” said Assemblyman Rob Bonta, co-author of the bill. “Freedom and liberty should never be pay to play.”
Conflicted Reformers say New Law Perpetuates Racial Bias
Some criminal justice reformers also oppose SB 10. Though they favor abolishing the “predatory” money-bail system, they say the new system gives judges too much power, relies on excessive government surveillance of people who are presumed innocent and perpetuates racial disparities.
“It is absolutely a positive thing to eliminate wealth-based decision-making in our justice system and to get rid of the commercial bail industry,” said Natasha Minsker, director of the ACLU of California Center for Advocacy & Policy. The ACLU initially supported the bill but withdrew its support. “The final version of the bill did not include sufficient protection against racial bias, and the computer programs that will be used are given a bigger role to determine who gets released than the original version of the bill,” Minsker said.
Under the risk-assessment system, Minsker explained that people arrested for misdemeanors will be released within 12 hours without having to pay a money bail and without any risk assessment unless they fall within the statute’s “exclusion list.” This list includes several offenses and other factors that disqualify someone from pretrial release.
People arrested for a felony offense will be evaluated by a pretrial assessment officer within 24 hours who will gather data about their personal and criminal history. The data will then be entered into a computer program which will determine whether the accused is a low, medium or high risk to public safety and their risk of flight. Those classified as low-risk must be released within 24 hours unless they fall within the exclusion list.
The pretrial services officer or judge will decide whether to release individuals classified as medium risk or hold them until arraignment. People classified as high risk must be detained until arraignment where a judge will decide whether they will remain in jail.
Large Gaps Remain Between African Americans and Whites Arrest Rates
“The challenges with the risk-assessment system are that it is most likely going to benefit white people, because communities of color have a very long history of being over-policed, and black and brown people are more likely to be arrested and have a criminal history,” Minsker said. Therefore, she said, “anyone who has a criminal history with the justice system is more likely to be on the statute’s exclusion list or deemed to be a medium or high risk, and because of that, they are more likely to be detained.”
Although researchers at the Public Policy Institute of California (PPIC) say racial disparities in arrests have narrowed, “the disparity between African Americans and whites remains substantial.” In its first statewide study of arrest trends between 1980 and 2016, the PPIC found that in 2016 African Americans made up about 6 percent of California’s population but 16 percent of arrests.
African Americans in California were three times more likely than whites to be arrested in 2016. In contrast, Latinos were 1.1 times more likely than whites to be arrested, said PPIC researchers in a Dec. 3, 2018 report describing their findings.
“Forty-five of the 49 counties examined have an African American arrest rate that is at least double that of whites, while 13 counties have an African American arrest rate that is at least five times that of whites.” PPIC researchers also discovered that large, urban counties tend to have lower arrest rates while small, rural counties tend to have higher arrest rates. (See PPIC’s interactive tool.)
Nationally, people of color are also disproportionately arrested and incarcerated. “Sentencing policies, implicit racial bias, and socioeconomic inequity contribute to racial disparities at every level of the criminal justice system. Today, people of color make up 37% of the U.S. population but 67% of the prison population,” according to The Sentencing Project which tracks developments in the criminal justice system.
“Overall, African Americans are more likely than white Americans to be arrested; once arrested, they are more likely to be convicted; and once convicted, they are more likely to face stiff sentences. Black men are six times as likely to be incarcerated as white men and Hispanic men are more than twice as likely to be incarcerated as non-Hispanic white men,” The Sentencing Project said.
The ACLU and San Francisco’s Public Defender Jeff Adachi are also concerned that the new law will leave the fate of the accused in the hands of probation officers. “Probation officers, who have a law and order mindset, would be the pretrial officers who would be doing the assessment,” Minsker said.
The Judicial Council of California, which oversees the state’s courts, will establish guidelines for the new system and provide a list of computerized assessment programs. A four-member panel, one of whom will have expertise in detecting potential bias in the programs, will recommend how the various risk levels should be defined, Hanzlik said. Each county will decide which program it will use. The risk-assessment system will cost about $200 million annually, Hanzlik added.
Despite the ACLU’s concerns, Minsker said the ACLU will work to improve the bail-reform law, rather than overturn it, by fighting for additional safeguards against bias. Even though the law will cause many bail agencies to shut down, Minsker said the bail industry will continue to make money from people detained by the federal government for immigration violations who are required to pay a money bail.
Lawmakers acknowledge the risk-assessment system will not eradicate pretrial racial disparities, but Hertzberg said, it is “a transformational shift away from valuing private wealth and toward protecting public safety.”
“Our goal is not to solve judicial bias with this [legislation], but to eliminate the factor of money from the equation,” Hanzlik said. Minsker, on the other hand, said, “the ACLU’s goal has always been to reduce racial bias in the justice system and increase the number of people who are free pretrial.”
Current Bail System is Based on an Arbitrary Bail Schedule
Under California’s current bail system, bail amounts are established by a fixed “bail schedule” which matches each charge to a dollar value. The bail schedule is prepared annually by judges who have the discretion to adjust bail amounts. Every county has its own schedule, so someone charged with a felony assault with a firearm, for example, would have to pay a $50,000 bail in Los Angeles County and $125,000 in San Francisco County, said researchers at the UCLA Luskin School of Public Affairs. If the accused appears at all court dates, the court refunds the bail payment regardless of the outcome of the case. If the accused fails to appear in court, the bail is forfeited.
Bail agents typically charge 10 percent of a bail and assume responsibility for the full bail if the accused fails to appear in court, but agents rarely pay the full bail. An analysis of California’s bail system by a judicial workgroup revealed that the state’s forfeiture laws make the process of initiating and collecting forfeited bails from bail agencies too complex, labor-intensive and costly for the courts to pursue, so they are often relieved of paying, in some instances, millions of dollars.
Some bail agencies offer payment plans at high-interest rates. Many also require property as collateral which may be seized if the accused fails to appear in court. Unlike the courts, bail agencies do not refund any money. Consequently, people can incur substantial debt even if their case is dismissed or they are proven innocent.
On Jan. 16, 2019, California’s Secretary of State Alex Padilla announced that the state’s new landmark law to abolish the money-bail system, which was slated to go into effect on Oct. 1, has been put on hold.
A well-funded campaign, sponsored by the bail industry, to overturn the law has obtained the signatures it needed to put the measure on the Nov. 3, 2020 general election ballot. This is a major setback for some criminal justice reformers who were anxious to eliminate money as a determining factor on whether to release people, who have been accused of a crime but not convicted, from jail prior to trial. It is now up to voters to decide the fate of bail reform in California.
Padilla said in order to qualify for the ballot the referendum needed 365,880 valid petition signatures. Based on a random sampling of signatures, election officials projected the referendum had over 400,000 valid signatures.