California Bail Law: Cash Bail

Criminal cases can take a long time to wend their way through trial in California, and the time passes even more slowly for a defendant held in jail pending trial. That's the justification for the bail system, in which the defendant is allowed to stay out of jail until trial by posting a certain amount of money with the court to guarantee his appearance.

But many have claimed that cash bail allows wealthy defendants to stay out of jail while poorer individuals stay behind bars until trial. In 2018, California became the first state to eliminate cash bail. But that was not the end of the story.

The California bail system has worked the same way as other state bail systems for many decades. It's just as portrayed on television: the defendant appears before the court, the attorneys argue, then the judge taps her gavel and says: "Bail set at $50,000."

That statement means this: if the defendant finds a way to post cash bail of $50,000, he can remain out of jail until the day he comes to court for trial. The bail works as security; it is held by the court and will be forfeited if the defendant doesn't show.

Obviously, a defendant wants to stay out of jail until trial. He can keep working, he can see his family, he can prepare his defense, and he avoids the stigma and awful experience of spending those weeks and months in jail. If he has the $50,000, he's good; if he doesn't, but has some money, he can pay a bail bondsman to put up bail for him. If he has nothing, he remains in custody until trial.

Read More: California Bail Reform Laws

Not every defendant is required to put up money to be released pending trial. Sometimes the court releases someone charged with minor crimes "on her own recognizance." But otherwise, a bail hearing is set, and the defendant can either pay the full amount of cash bail or use a bail bond or surety bond.

How does a bail bond work? The defendant or someone on her behalf contacts a bail bondsman. This businessman pledges to pay the full value of the bail if the defendant doesn’t appear in court. In exchange, the defendant pays a 10 percent premium – $5,000 in the example above – and gives the bondsman collateral, like a lien on real estate, a vehicle or other valuables.

The bail system came to this country from English common law. But U.S bail law got its own legal footing in the Judiciary Act of 1789 that required that all crimes that didn't carry the death penalty be bailable. The system remained the same until 1966, when the U.S. Congress passed the Bail Reform Act, which was designed to reduce the financial burden on a defendant.

President Lyndon B. Johnson supported the law, telling stories about how the bail system had hurt people, like a man who spent two months in jail before being acquitted, losing his job, his car and his family in the process. The bail system, he noted, was biased against the poor.

The next major revision to U.S. bail law came with the Bail Reform Act of 1984, which clarified that defendants should be held until trial if dangerous to the community. It also made a bail hearing mandatory for those eligible for bail.

The California Constitution provides that everyone accused of an offense has an absolute right to be released on bail other than for a few crimes that are listed there. It also prohibits excessive bail.

The provisions also set out the showing required by the prosecution before bail can be denied: clear and convincing evidence that there is a substantial likelihood that the defendant's release on bail would result in great bodily harm to the victim, the victim's family or other members of the public.

Some 40 years ago, when Edmund (Jerry) Brown Jr. was sworn in as Governor of California for the first time, he called the state legislature's attention to the inequity of the bail system. In his inaugural address, he noted how it sent people who had not been convicted of a crime to jail, simply because they did not have the money to make bail.

The legislature did not do anything about the bail laws then, but in 2016, when the Chief Justice of the California Supreme Court again brought the inequity of the jail system to its attention, the legislature acted. The result was Senate Bill 10, introduced to reform the cash bail system.

While the bill was pending, the habeas corpus case, "In re Kenneth Humphrey" came before the California Court of Appeals. In that case, the prosecutor had made no showing to the Superior Court that cash bail was necessary to protect the public or the victim, and the trial court found the defendant suitable for release on bail. However, the amount the trial court set – $350,000 – was an amount the defendant could not pay or even finance through a bail bondsman.

The Court of Appeals noted that the Superior Court failed to consider whether the defendant could afford this bail and, if not, whether other measures might be sufficient to serve the government's interest. This failure, the court ruled, violated the defendant's constitutional rights. The decision effectively ruled the California cash bail system, as it stood, was unconstitutional.

Given this court ruling, the legislature finally acted, passing Senate Bill 10. This was signed into law by Governor Jerry Brown in August, 2018, and was to go into effect in October, 2019.

Under this new law, defendants charged with a crime in California wouldn't need to put up cash or borrow it from a bail bond agent for bail. Instead, the courts would decide who to keep in custody and whom to release while awaiting trial based on algorithms created by each jurisdiction.

Defendants in most non-violent misdemeanor cases would be released within 12 hours. In other situations, their release would depend on how likely they would be to show up for their court date and the seriousness of their crime. Monitoring by GPS or regular check-ins with an officer could be required.

The goal of the law was to eliminate any bias in release hearings, but not everyone was satisfied. Bail bondsmen, who would lose their businesses, were unhappy. Many people also worried that the new system would not be any better than the old system in eliminating bias, giving judges too much discretion in determining the circumstances under which people would be released or kept in custody.

For example, the American Civil Liberties Union had supported the idea of bail reform but felt this new law would is too heavily weighted toward detention and does not have sufficient safeguards to ensure that racial justice is provided in the new system.

Given this controversy, the Californians Against the Reckless Bail Scheme coalition formed to see signatures for a referendum to put the law to vote. It picked up more than 575,000 signatures in 70 days to put the bill on the November 2020 ballot.