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Cash bail: why some call for changes

Every night in the US, about 450,000 people are in jail awaiting trial.

Rich Pedroncelli/AP
After signing bail legislation into law on Aug. 28, California Gov. Jerry Brown hands a copy to state Sen. Bob Hertzberg, who along with Assemblyman Rob Bonta (right) co-authored the measure. The bill makes California the first state to eliminate bail for suspects awaiting trial. Also seen are Assembly Speaker Anthony Rendon (left), Senate President Pro Tem Toni Atkins (second from left), and California Supreme Court Chief Justice Tani Cantil-Sakauye (second from right).

In August, California passed a bill that abolishes cash bail and replaces it with a risk-assessment program. Although some say the existing system is unfair and costly, the new measure has faced criticism from more than one camp.

Q: What is cash bail?

Under British common law, the release of a suspect before his or her trial was granted on the basis of a surety, or guarantee, from another individual. No money was paid upfront; only if a suspect absconded was payment due.

This system evolved in both Britain and the United States into a system whereby suspects pay a bond in cash or property to secure their pretrial release. The bond is then repaid after all criminal proceedings are completed. The amount of money is determined by a jurisdiction’s “bail schedule” based on the alleged crime and the suspect’s criminal record.

In the late 19th century, the US added another wrinkle: Bond bailsmen began advancing cash and taking responsibility for suspects’ court appearances in return for a prorated fee.

The amount of cash varies widely by jurisdiction. In California, bail schedules are high: The median amount is $50,000, roughly five times the national average.

Q: What are the arguments for and against cash bail?

Proponents say cash bail is preferable to jail time and provides an incentive for suspects to comply with release conditions and appear in court for trial. Since suspects hope to recoup their money, they have “skin in the game” as opposed to being released on a promise to return.

The arguments against cash bail are about fairness and efficacy. By letting wealthier suspects pay their way out, the system penalizes poorer defendants, including those charged with minor offenses whose bail amount is too low to interest commercial bondsmen. For low-income suspects, failure to appear in court is often a function of unstable housing and lack of transportation, not intention to abscond.

Pretrial detention is costly, and ethnic and racial minorities are overrepresented. Every night in the US, about 450,000 people are in jail awaiting trial.

Q: So what has California done?

California has decided that counties can no longer demand cash bail to release suspects. Instead, they must evaluate the risk of letting them go, using a computer algorithm that weighs the alleged crimes and people’s criminal histories.

Those charged with low-level or nonviolent felonies who are classified as low or medium risk can be released without conditions or under supervision. Those charged with violent felonies or other crimes in which they’re deemed a flight risk or threat to public safety will remain in custody.

Judges will have some discretion in deciding whether to free a suspect. But setting cash bail for release will no longer be an option.

The legislation, Senate Bill 10 (SB 10), was signed into law in August and takes effect in October 2019. Its passage is the culmination of nearly two years of debate in the Democratic-controlled state legislature.

Q: Is there any opposition to what California has done?

The state’s bail bondsmen are furious at the abolition of cash bail as it upends their entire business. They lobbied against SB 10 and since its passage have begun gathering signatures for a ballot referendum that would repeal the measure.

Opposition has also come from liberal organizations and bail-reform advocates who say the bill is a halfway measure that could result in just as many Californians being in pretrial detention. The American Civil Liberties Union of California cosponsored a 2016 version of SB 10 but came out against the final bill.

Another criticism: Although prosecutors will be able to file for “preventive detention” if they believe it’s not safe to release a suspect, it could take weeks for a judge to rule on those requests. Opponents are also suspicious of risk-assessment tools given the history of racial bias in the US justice system, saying the tools will perpetuate unequal treatment of minorities. State Assembly Speaker Anthony Rendon acknowledged these criticisms during the bill’s passage. “Justice is a journey, and SB 10 is a step on that path,” he said.

Q: What are other states doing on this front?

In 2017, New Jersey ended cash bail for most offenses and adopted a risk-assessment tool. The result was a drop in pretrial detention by about 20 percent in the first year. Other states have also debated reforming or abolishing cash bail.

In 2016, Maryland’s attorney general issued an opinion that said courts should use cash bail only as a last resort and that nonmonetary ways should be used when possible. However, researchers have found that in some counties the result has been an increase in pretrial detention.

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