Bail is the standard procedure by which courts allow someone arrested and charged with a crime to remain free pending trial. Although some defendants are released "on their own recognizance," most are required to post bail, that is, to give the court an amount of money to secure their future appearance at court.
For decades, California politicians and civil rights organizations have questioned the equity of money bail, which seems, on its face, to release wealthier defendants while keeping indigent defendants behind bars until trial. A bail reform law was passed in California that eliminates the money bail system. But not all Californians are in agreement with this, and the matter will be determined by the voters in 2020.
Bail Is Older Than the Nation
The system of money bail, also called cash bail, is not an American innovation. It was the law in England, before this country's independence, developed as early as the Middle Ages. Initially, it was a way of resolving disputes peacefully. The individual accused was required to find a friend or relative who would serve as a surety and agreed to pay a set amount to the victim if the defendant did not show up for trial.
In 1677, bail was established legislatively by the Habeas Corpus Act, and later in the 1689 English Bill of Rights, excessive bail was prohibited. But in the late 1800s, the idea of friends and family providing surety didn't work as well. England passed the Bail Act to eliminate the surety system and find more effective methods of ensuring a court appearance.
History of Bail in the United States
When the United States Constitution was written, bail was incorporated in the Sixth Amendment, which provides that all persons arrested have to be informed about the charges against them and be allowed to ask for bail in any offense considered "bailable."
To complement this, Congress passed the Judiciary Act of 1789, which provided that all offenses not subject to the death penalty were "bailable." It also limited the power of judges to set bail amounts, prohibiting excessive bail. Over time, the practice in this country changed to require the surety to put up the entire amount of bail, and bail bond agencies started to appear in the 1800s.
National Bail Reform
When Lyndon Johnson was president, he advocated for bail law reform, pointing out how the current system hurt poor people. Those who were not able to post bail might spend months in jail awaiting trial, lose their jobs, lose their residences since they could not pay rent, and their families would go hungry, even if they were acquitted of all crimes. In 1966, the U.S. Congress passed the Bail Reform Act to remedy these inequities and allow for the release of poor defendants with less bail.
This law was amended two decades later in the Bail Reform Act of 1984, which allowed the court to hold people without bail if they were adjudged a danger to the community. It also mandated a bail hearing.
Bail Laws in California
To understand bail reform in California, it is important to get an overview of how bail works in this state. When an individual is arrested for a non-capital offense (a crime for which the death penalty is not a possible punishment), she has a constitutional right to post bail so that she can remain free pending trial. The court retains the bail amount as security that the defendant will show up for trial, at which time it is returned.
The defendant can put down the cash herself or pay a bail bonds person to post the amount, often a nonrefundable fee of 10% of the bail amount. For example, if bail is set at $50,000, to be released, the defendant must come up with either $50,000 from her own pocket or $5,000 to give to the bail bonds person. While she would get her $50,000 back if she shows up at trial, the $5,000 paid to the bail agency is simply gone.
The system has been criticized for decades as unfair and inequitable. It bases the release of an accused on whether she can afford bail, not on questions of public safety and flight risk. When Jerry Brown was elected governor for the first time decades ago, he mentioned its inequity in his inaugural address in 1979, but the legislature did not act.
California Money Bail Reform Act
In 2018, a California appellate court ruled that the state's bail system was unconstitutional and deprived the accused of his right to equal protection. Various studies were published finding fault with the system and the state legislators decided to reform the law.
They proposed Senate Bill 10, known as the California Money Bail Reform Act. Although it would eliminate money bail, the part of the bill setting alternative ways to determine release was reworked several times. Senate Bill 10 ultimately lost the support of civil rights advocacy groups like the American Civil Liberties Union.
It passed nonetheless and was signed into law by Governor Jerry Brown on August 28, 2018, with an effective date of October, 2019. This made California the first state to completely eliminate cash bail, but the law has yet to go into effect.
Read More: California Bail Law: Cash Bail
Results of California Bail Reform Law
Under the new California bail reform law, a person arrested and charged would not need to put up bail as security to ensure his appearance in court. That means, no bail bond agent or bail bond fees.
Rather, under the new law, it would be up to local courts to determine which defendants can be released while they await trial. In all cases, a low-risk individual (charged with a non-violent misdemeanor) would typically be released without bail within 12 hours.
Each jurisdiction would have to create an applicable algorithm that would determine other cases. Release would depend on such things as how probable it was that a defendant would appear in court, the seriousness of his crime and how likely it was that he would commit another.
Criticism of the New Law
The legislators enacting the bail reform law and the governor signing it all stated that the intention of the new law was to eliminate human bias in court proceedings. However, some critics of the law argued that the new system was likely to perpetuate discrimination against the poor as well as racial discrimination.
Originally a driving force behind the reform law, the American Civil Liberties Union of California changed its mind after last-minute changes. Its spokesman stated that the changes gave judges too much latitude in deciding who would be released and who would be kept in custody. The organization worried that the system would be weighted toward detention and lacked safeguards to prevent racial injustice.
The bail bond industry also strongly opposed the new bail reform law. This was expected since the industry would be eliminated by the elimination of money bail in California, wiping out thousands of jobs.
Bail Reform Initiative on Ballot
The bail bond industry began a referendum drive against Senate Bill 10 the day after the legislation was signed. They obtained the signatures necessary to place the initiative on the November 2020 ballot.
Under California law, the law is now on hold and will not take effect until after that election. Even if voters ultimately uphold Senate Bill 10, the bail bond industry will have remained in business for a year past the initial effective date of the reform law.
- Burns Institute: The Evolution of Money Bail Throughout History
- How Stuff Works: History of Bail
- NPR: California Becomes First State To End Cash Bail After 40-Year Fight
- Find Law: Bail Reform and California Bail Laws
- Sacramento Bee: Jerry Brown Signs Bill Eliminating Money Bail in California
- Sacramento Bee: Bail Bondsmen Ask Voters to Kill California Law
- Shouse Law: Bail
Teo Spengler earned a J.D. from U.C. Berkeley's Boalt Hall. As an Assistant Attorney General in Juneau, she practiced before the Alaska Supreme Court and the U.S. Supreme Court before opening a plaintiff's personal injury practice in San Francisco. She holds both an M.A. and an M.F.A in creative writing and enjoys writing legal blogs and articles. Her work has appeared in numerous online publications including USA Today, Legal Zoom, eHow Business, Livestrong, SF Gate, Go Banking Rates, Arizona Central, Houston Chronicle, Navy Federal Credit Union, Pearson, Quicken.com, TurboTax.com, and numerous attorney websites. Spengler splits her time between the French Basque Country and Northern California.