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Bail Reform and California Bail Laws

Created by FindLaw's team of legal writers and editors.

One important and early step in the criminal justice system is the bail process. Bail decisions generally take place at a defendant's first court appearance where the judge can set a cash amount for bail based on several factors. Then, if the defendant can post the bail, they will be released until their trial date.

However, a dramatic change in California bail laws (The California Money Bail Reform Act) could forever impact this long-held practice in the state and even around the nation. Read on to learn more about California bail laws and the history of bail reform in the Golden State.

Cash Bail System

When someone is arrested, they generally have a constitutional right to post bail so that they can be released while awaiting trial. The court keeps the bail as collateral to make sure that the defendant appears. The defendants can either pay the cash themselves or use a bail bonds person to post the amount. Bail bonds agents typically charge fees of 10% of bail amounts, but the amounts vary depending on the county.

Many have criticized this system as archaic and unfair because it isn't based on public safety and whether the person is a flight risk, but on whether the person can afford the cost of bail. Criminal justice advocacy groups have also taken issue with the predatory nature of the for-profit bail system. These concerns have contributed to calls for bail reform.

History of California Bail Reform

California, like many other states, has had a history of bail reform efforts. These gained traction in 2018 when an appellate court in California held that the state's bail system was unconstitutional. At the same time, legislators -- influenced by studies finding fault in cash-based bail systems -- were developing laws to overhaul it.

In 2017, the bill that would eventually become The California Money Bail Reform Act was originally proposed in the Legislature, where it stalled. It was refashioned the following year. The reworking of the legislation led to significant changes and cost the backing of civil rights advocacy groups like the American Civil Liberties Union (ACLU), but it passed nonetheless.

Governor Jerry Brown signed the bill on August 28, 2018 making California the first state to pass legislation eliminating cash bail (subject to a public referendum on the law in 2020).

Risk Assessment-Based Bail System

The California Money Bail Reform Act not only eliminates cash bail, but it also establishes an alternative system based on risk assessment and the probability that a defendant will return to court for appearances. The main purpose of the updated California bail law is to narrow the economic gaps in the criminal justice system.

Under the law, those charged with certain nonviolent misdemeanors may be automatically released within twelve hours of booking without requiring a risk assessment. However, others will face a risk assessment based on the specific charges they face, their prior history, safety concerns for victims, and other factors at a judge's discretion. The risks levels are categorized as follows:

  • Low Risk: Defendants would be released with the least restrictive non-monetary conditions possible.
  • Medium Risk: Defendants could be released or be held, depending on local standards.
  • High Risk: Defendants would stay in custody until their arraignment.

Defendants with multiple prior failures to appear, recent felony convictions, or a history of domestic violence allegations would be characterized as higher risk and therefore unlikely to face release. For those in the medium and low risk categories, judges would ultimately determine whether they can be released safely, which may include the use of monitoring.

The risks are determined, in part, by an algorithm with several factors about the defendant, including:

  • Zip codes;
  • Housing status;
  • Employment data; and
  • Arrest history.

Criticisms of Risk Assessment- Based Bail System

Advocacy groups, including the ACLU and Human Rights Watch oppose California's bail reform law for numerous reasons. One of which involves the level of discretion given to judges in determining a suspect's detainment before trial and their reliance on algorithms based on specific data sets. Because the criminal justice system can operate in a discriminatory manner (especially against communities of color, women, and low-income people), individual biases and the reliance on potentially biased statistical data could lead to unfair results for certain communities.

Another concern is that ending the bail system will make it less safe for Californians. Without bail, and bail bonds people with the authority to bring criminals into court, some opponents argue that more criminals will roam free. With the shuttering of the bail industry and the millions of dollars needed to implement the law, there are also potential economic ramifications.

Other jurisdictions such as Washington D.C. and New Jersey have made changes in their law to de-emphasize cash bail, but California is the first state to pass a law eliminating cash bail entirely. If other states follow this trend, it could result in major changes to the criminal justice system across the nation.

Talk to an Attorney About California Bail Laws

With so many large-scale changes taking place in the area of bail laws, it's important to know more about the laws where you live and how they may affect you. For more information about bail laws or for legal help with a criminal law case, talk to an experienced criminal attorney near you.

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