Last week, Sens. Kamala Harris (D-CA) and Rand Paul (R-KY) unveiled federal legislation to incentivize states to enact bail reform, joining a growing number of policymakers throughout the country that are seeking reforms to our fraught money bail system.
Money bail — a condition for pretrial release — was originally intended to ensure defendants returned to court for their hearings and to reduce the likelihood that someone released pretrial would cause harm to others. In practice, however, money bail has created a two-tiered system of justice where someone’s release is determined largely by their ability to pay bail, not their flight or public safety risk. As a result, low or moderate-income defendants that cannot afford bail must make an impossible decision: remain in jail while their case is pending, plead guilty to a crime they might not have committed, or incur significant debt by contracting with for-profit bail bonds agencies that charge them 10 percent of their total bail amount — a fee they do not get back even if their charges are dropped or a court finds them innocent. On the other hand, wealthy defendants are easily able to post bond directly to the courts, secure pretrial release, and get their money back at the resolution of their case regardless of whether they are found guilty or innocent.
This is unjust and inequitable, and is not in the best interest of public safety.
With this in mind, it is no surprise that a bail reform movement is sweeping through the country, including here in California. Earlier this year, California lawmakers introduced state Senate Bill 10 (Hertzberg) to shift from a wealth-based pretrial detention system, to one with individualized risk determinations and a greater focus on services to ensure those on pretrial release successfully return to court.
Both the federal and state proposals are desperately needed. Currently, over 60 percent of people in California jails are awaiting trial or sentencing, costing taxpayers $5 million a day. For someone who is unable to afford bail, even just a few days in jail can cost them their car, job, housing or even child custody. Research also shows that pretrial detention puts someone at a higher risk of being convicted, taking a plea deal, and receiving harsher sentences. For some, pretrial detention can have deadly consequences. Each year, roughly 1,000 people die nationwide while in local jails. The majority of these deaths are among people detained pretrial.
No matter which way you look at it, the current bail system is simply not working. As compared to the rest of the country, California keeps far more people in jail while they await trial but has lower court appearance rates than other states. For example, Kentucky, releases about 70 percent of people awaiting the resolution of their cases; 89 percent of those make all their future court appearances and 92 percent are not re-arrested while they are on pretrial release. As under SB 10, Kentucky has successfully adopted a system where individualized risk determinations — not individual wealth — dictate pretrial release decisions.
California should follow Kentucky’s example and stop wasting resources on its unfair and ineffective system that is harming communities — particularly low-income people and people of color. For example, people of color are more likely than white people to be detained pretrial. Additionally, people of color are assigned higher bail amounts than white people accused of similar offenses. Nationwide, bail bond amounts for black men are 35 percent higher than bond amounts for white men. For Latino men, they are 19 percent higher than for white men. Black and Latino defendants are also more likely than white defendants to be detained while their cases moves forward. As a result, money bail fuels already egregious racial disparities in the justice system.
Although opponents of bail reform are quick to denounce reforms a threat to public safety, that is simply not the case. Not only would SB 10 help ensure that people are not detained pretrial simply because they cannot afford bail, the bill will actually make communities safer. The fact is that our current system does not do a good job of protecting our communities. Under the current system, pretrial release is conditioned on wealth, not whether or not someone can be released safely. Wealthy people can buy their freedom, no matter how much of a risk they pose. SB 10 will prioritize community safety and also ensure that people return to court for their hearings.
As Kentucky’s court appearance rates demonstrate, bail reform will improve the rate at which people return to court. Yet the for-profit bail industry, which is backed by the insurance industry and has a clear financial incentive to retain the current system, would have people believe that they provide a free service to taxpayers to ensure people return to court. However, because people don’t get their money back when they secure pretrial release through a bail bonds company — even if they return to court — the incentive to return to court simply isn’t there.
Instead, the bail industry diverts millions of dollars each year from families that are already struggling to make ends meet. Using predatory agreements, the bail industry takes advantage of people in desperate situations. In San Joaquin County, for example, nearly 200 people paid for-profit bail companies to be freed from jail where no case was even filed and the charges were dropped during a five-month period in 2016. In San Francisco, the bail industry strips city residents of $15 million a year with nonrefundable fees. Over $9 million of that came from black and Latino families. The California Department of Insurance also reported that complaints to the department about for-profit bail nearly quadrupled between 2010 and 2015. Common complaints included scams, misrepresentation, extortion and kidnapping, bribery, perjury, theft, and fraud.
It is high time California addresses these problems and passes SB 10 to ensure that everyone has equal access to justice, we achieve our public safety objectives, and preserve the integrity of our justice system. We encourage congress members to do the same and pass Senators Harris and Paul’s legislation.