Should people be locked up for being unable to pay bail? More than 30 years ago, the U.S. Supreme Court held that was unconstitutional. Bail is meant to incentivize people to show up at their court dates. But as we mentioned in a recent blog post, nearly half a million Americans are currently locked up awaiting trial, simply because they can't afford bail.
As we discussed, cash bail disproportionately affects the poor and minorities, and it actually increases the chances of conviction. Being stuck in jail before your trial often means the loss of your job and housing and can negatively impact your child custody rights. It can have repercussions on your privacy and attorney-client confidentiality. It can put you in a position where pleading guilty seems the only way to get your life back.
California just overhauled its bail system, which included the use of bail bondsmen, who took a substantial fee to bail people out. Its new system abolishes money bail, replacing it with a scoring system that, in theory, allows judges to release non-dangerous individuals who are likely to appear for court and deny release to those who are determined to be a flight risk or a danger to the public.
While the bill had been hailed as a breakthrough against the criminalization of poverty, a number of the bill's proponents pulled their support after new amendments were added at the last minute. They included the ACLU, Human Rights Watch, the San Francisco Public Defender and others.
The detractors worry that the new system gives too much discretion to judges who may simply deny release to the same people currently being ordered to pay an unaffordable amount in bail.
That has been a concern in Wisconsin, which led the nation in abolishing bail bondsmen in 1979 -- one of only four states that have done so until very recently. In Wisconsin, by law, cash bail may be imposed "only upon a finding by the court that there is a reasonable basis to believe that bail is necessary to assure appearance in court." In practice, however, many courts make that finding and impose cash bail on too many indigent defendants, who are then unable to be released.
In California, under the new system, people accused of nonviolent misdemeanors will typically be released within 12 hours. Those facing serious misdemeanor or felony charges will be scored using a risk assessment tool administered by county probation departments. Those who score as "low risk" will be released within 24 hours. There is a legal presumption against the release of people accused of violent felonies or who score high on the risk assessment.
Critics worry that human bias will make its way into the risk assessment tool, creating a situation where the poor and people of color continue to be held before trial. Many of these tools have been demonstrated to be skewed against minorities. Unfortunately, the overhaul does not require courts to collect data about how the new system is working.
Abolishing cash bail is a positive step forward, but reforms need to result in more people being released before trial so they are not essentially punished before being found guilty.