Our View | Bail Reform: California’s Answer Misses the Mark

Our View

By The Signal Editorial Board

There’s a reasonable argument to be made that California’s criminal bail system needed… something.

Some kind of reform. After all, if you have two people charged with the same crime, and their bails are set identically at, say, for the sake of argument, $100,000, and one is a multimillionaire and one works in fast food…

You can easily bet which one will await trial at home, and which one will await trial behind bars. Traditional bail is a system that favors the well-to-do versus the poor, and it’s reasonable to say that it doesn’t treat everyone fairly.

It’s no surprise, then, that Gov. Jerry Brown this week signed into law Senate Bill 10, which virtually eliminates the traditional cash bail system from California and replaces it with “risk assessment” and judicial discretion.

On its face, you might think it’s just another one of Brown’s “get out of jail free” cards. After all, the governor seemingly hasn’t met a category of criminal he wouldn’t gladly return to the streets of California.

But a funny thing happened on the way out of jail toward Park Place and Boardwalk: Many who favor bail reform reversed course on SB10, and came out against it in its final days before passage, citing changes in the legislation that they say will only perpetuate the bail system’s unbalanced treatment of the poor and people of color.

And, in fact, they contend that it will not result in less incarceration at all, which was one of the stated goals of those advocating bail reform.

Even the American Civil Liberties Union, which advocates bail reform to reduce unnecessary incarceration and eliminate predatory lending practices in the bail bonds industry, withdrew its support at the 11th hour.

“We oppose the bill because it seeks to replace the current deeply flawed system with an overly broad presumption of preventative detention,” said a statement released by the ACLU. “This falls short of critical bail reform goals and compromises our fundamental values of due process and racial justice.”

Good points, but we don’t want to throw out preventative detention with the bathwater, either. We believe it still has its place, particularly for cases involving violent crimes. For those who are charged with serious crimes but might be good candidates for release, a new system should be created to incentivize them to stick around until their legal processes are complete, rather than skipping town.

That was the idea behind bail: It’s an incentive to stay put. Even if you use the services of a bail bondsman, it’s a powerful influencing factor to make you think twice about missing a court date. Meanwhile, you get on with your life, go to work, participate in the preparation of your defense, and hopefully stay out of trouble while you await trial.

Without bail, we face one of two scenarios: In one scenario, many more of those facing criminal charges will be released, perhaps to commit other crimes, and perhaps to flee since there’s no longer any financial incentive not to.

Or, as the ACLU fears under SB10, we’ll continue having high incarceration rates that disfavor the poor. Another side effect: It could saddle taxpayers with the cost of not only creating new “risk assessment” mechanisms, but also we could still be left with the cost of incarcerating many people who might otherwise not need to be incarcerated.

We hope California doesn’t let this be the last word on bail, at least as it regards serious crimes. We would favor a system that is more fair than the old one, but still incentivizes defendants to return for court dates and be on their best behavior.

Our view on bail and “preventative detention” differs a bit from most bail reform advocates, including the ACLU, but the one thing we can all agree upon is this: The bail system needed something, but SB10 is the wrong answer. 

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