Bail: A fight to remove the price tag

Bail is supposed to make sure that a defendant returns for the court date, although critics say bail merely punishes people for being poor.

Legislation is moving through the Capitol to try to resolve this issue, but it is fiercely opposed by the bail agents and bounty hunters who make their living assuring the courts that skittish defendants will show up.

“Instead of establishing a number for the price of your freedom, let’s look at the individual.” — Bob Hertzberg.

The California Money Bail Reform Act was introduced in the form of two identical bills, SB 10, authored by Sen. Bob Hertzberg (D-Van Nuys), and AB 42 authored by Assemblyman Rob Bonta (D-Oakland). AB 42 was defeated in an Assembly floor vote, leaving the Senate bill as the principal legislation.

Hertzberg’s SB 10 seeks to reduce the pretrial jail population by having California counties use a procedure called “individualized risk assessment” to determine whether people awaiting trial or sentencing should be released pending their court appearance, or whether they should be required to post a cash payment to make sure they show up.

The assessment, which factors in public safety and flight risks, is also intended to prevent wealthy, violent offenders from paying bail and being released prior to arraignment. The assessment includes such issues as victim safety, ties to the community and family, criminal record and record of making previous court dates among other factors.

“Instead of establishing a number for the price of your freedom, let’s look at the individual,” says Hertzberg.

Counties would also be responsible for developing a program to track inmates and remind them of upcoming court dates. Bonta said home confinement or electronic motoring could be used to track defendants to ensure their return to court.

Based upon the current court-adopted bail schedules, the amount of the bail typically is based on the severity of the crime alleged.

Many defendants cannot afford to pay bail in full, but they often hire a bail bondsman, who deposits funds with the court to cover the bail. The bondsman typically collects 10 percent, or more, from the defendant for the service. The bondsman gets his money back after the defendant meets all the obligations to appear in court.

State Supreme Court Chief Justice Tani Cantil-Sakauye initiated the formation of a Pretrial Detention Reform Work Group to study fines, fees and bail.

Hertzberg said excessive bail is keeping people in jail and ruining their lives, costing them their homes, jobs and cars, and eventually forcing them to agree to a charge to get out of jail for time served.

“Excessive bail for Bill Gates is different than excessive bail for someone who is living in the projects,” he said.

The bill is co-sponsored by a number of organizations including American Civil Liberties Union of California, Anti-Recidivism Coalition, California Public Defenders Association and Californians for Safety and Justice.

Bonta’s bill failed in a 35-37 Assembly vote, while the twin bill, SB 10, cleared the Senate with bipartisan support and amendments.

“Although the Assembly refused to put people before profits today, we are committed to work twice as hard to ensure representatives don’t make the same mistake with SB 10,” Bikila Ochoa, Policy Director of the Anti-Recidivism Coalition, said in a statement after Bonta’s bill failed in the beginning of this month.

State Supreme Court Chief Justice Tani Cantil-Sakauye initiated the formation of a Pretrial Detention Reform Work Group to study fines, fees and bail.

“The hug-a-thug campaign has gone on far too long.” — Beth Chapman.

During a meeting with the Judicial Council of California, which Chief Justice Cantil-Sakauye also heads, she said, “Our bail system may sometimes unfairly penalize the poor and may not effectively serve its intended purpose.”

The Judicial Council, the administrative arm of the California court system, commended some of the pre-trial release program’s initiatives, but expressed concerns regarding the current state of SB 10 in a letter last month.

“The bill appears to significantly limit information provided to the judge at pre-arraignment as a basis for the release determination,” the Judicial Council wrote. “As currently drafted, the bill would only require information about the current offense, the law enforcement list of charges, and a risk assessment result. The bill, however, does not allow other important information to be provided to the judge such as criminal history, probable cause documentation or other background related to the risk assessment.”

The full letter of concern be viewed here: http://www.courts.ca.gov/documents/ga-position-letter-assembly-sb10-hertzberg.pdf

Hertzberg said a number of changes have been made at the suggestion of the Judicial Council and District Attorneys Association.

Critics of the bill include Golden State Bail Agents Association and Professional Bail Agents of the United States, headed by Beth Chapman, wife of Duane “Dog the Bounty Hunter” Chapman.

“The hug-a-thug campaign has gone on far too long,” said Chapman. “Where there is no accountability and no deterrent, there is only danger to our community.”

It costs counties more than $100 a day to house inmates with pending charges.

Both associations support reform of bail scheduling and “stacking” – in which multiple bail amounts are calculated separately and added together, but they say SB 10 does not address these issues and will impede public safety.

They also contend that the bill spends taxpayers’ dollars to let violent offenders back into the community – an argument rejected in a legislative analysis.

“SB 10 prohibits pre-arraignment release of a person charged with a serious felony, a violent felony, felony witness intimidation, spousal rape, domestic violence, stalking, violation of protective orders, or any felony while the person was on pre-trial release for a separate offense,” the analysis noted.

Statewide, it costs counties an average of about $100 a day to house inmates with pending charges. One county that already has established its own risk-assessment method, Santa Clara, pays about $128 daily to house an inmate, according to the Board of State and Community Corrections.

New Jersey Assemblyman Bob Andrzejczak, who initially supported his home state’s legislation, called its implementation an absolute disaster.

The Bail Reform Act attempts to cut these costs associated with future pre-trial detainees, but Assemblyman Bonta admits this bail-overhaul requires initial costs that they’re working to bring down.

“It requires upfront resources that make sure the pre-trial services are set up appropriately to provide adequate support,” he said.

If SB 10 clears the Assembly and is signed into law by Governor Brown, California would be one of few states who have enact a state-wide pre-trial risk assessment. The others include Kentucky, Arizona and New Jersey.

In a letter to Assembly Speaker Anthony Rendon, New Jersey Assemblyman Bob Andrzejczak, who initially supported his home state’s legislation, called its implementation a disaster.

“The public safety needs of citizens in New Jersey has suffered far greater than could have been imagined,” wrote Andrzejczak, a Democrat.

He said legislators were misled by exaggerated incarceration statistics and tax payers are carrying the burden of the new policy, while defendant’s rights are being infringed upon and career criminals are being released back into the public.

The implementation of a national money bail reform or replacement comes at a much steeper price than California’s state-wide initiative.

A two-year delay process has been added to California’s legislation, to address concerns about the large-scale reform. Hertzberg said, “We’ll give you two years to figure it out and correct anything that we learn about in that time.”

Meanwhile, federal legislation also has been introduced to deal with bail.

U.S. Sen. Kamala Harris (D-California), and Sen. Rand Paul, (R-Kentucky) introduced The Pretrial Integrity and Safety Act of 2017, a national bail-overhaul.

“We must come together to reform a bail system that is discriminatory, wasteful and fails to keep our community’s safe,” Sen. Harris said in a written statement.

The implementation of a national money bail reform or replacement comes at a much steeper price than California’s state-wide initiative that has been criticized.

The Pretrial Integrity and Safety Act authorizes a $10 million grant over a three-year period to encourage states to replace money bail with the individualized risk-based assessment method.

“This bipartisan federal legislation is the latest sign that bail reform is not a partisan issue or a rural or urban issue or a regional issue, it is an American issue,” Sen. Hertzberg said in a statement.

SB 10 passed the Assembly Public Safety Committee and is awaiting consideration in the Appropriations Committee.
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Ed’s Note: Anna Frazier is a Capitol Weekly intern from the University of Arizona.