Exclusively Online | Fall 2019 Issue

The purpose and future of cash bail

Bail is meant to get defendants to show up for court. Is that the best way?

By Jim Newton

In the criminal justice system, bail is intended for one purpose: to secure a defendant’s appearance in court. A person who is arrested is allowed to go free under the condition that he show up to answer for his charges; to keep him from fleeing, he is forced to put up money and property – and to risk forfeiting those if he fails to appear as scheduled.

That’s fine as far as it goes, but it rests on certain presumptions and expectations.

The first presumption is that bail is the best way to insure that a defendant shows up. Surely, the reasoning goes, a person will be more likely to return to court if failing to do so costs him money or even a home. That seems obviously true. But just because putting up money or property is one way to encourage an appearance doesn’t mean that it’s the only way or even the best way. It might make just as much sense to place a defendant’s future liberty at stake: A judge could release a person with the warning that failure to appear might result in an arrest warrant, a criminal conviction and a substantial jail sentence, for instance.

The expectation, meanwhile, is that bail works equally for defendants of various types, an essential aspect of a system predicated on fairness. Since bail is not intended to punish – it is extracted before any conviction, after all – it should be enough to secure the defendant’s appearance in court but not so much as to represent a punishment itself. What, then, for a defendant who is assessed a modest bail – say, $10,000 – in accordance with the bail schedule for his offense? A wealthy person could easily pay that and walk free, but a poor one might not be able to come up with the cash or security and spend his time awaiting trial in custody. While he’s in jail, he might lose his job. If that same defendant is acquitted, he will have paid with his job for a crime he did not commit, while a wealthy person will have his security returned and resume life as normal. Is that tolerable in a system that is supposed to treat rich and poor alike?

Those are the types of questions that have sparked a broad debate over bail and its place in the criminal justice system. In California, Governor Jerry Brown, six months before leaving office, signed a bill that would give judges greater discretion in deciding which defendants needed to post bail, eliminating it in some cases. Governor Gavin Newsom, who took office in January 2019, also supported the bill and went further than Brown in denouncing the existing system of cash bail, which he called “shameful.” As Newsom wrote in a 2017 op-ed piece: “It seems blindingly obvious and commonsensical that no one should remain locked up — or go free — based on their ability to pay. Pre-trial detention decisions should be based on a person’s danger to the community and risk of flight — not how much cash they can produce.”

Having persuaded both houses of the Legislature and two governors that cash bail needed reform or replacement, one might think that critics had won the day. But this is California, where debates are slow to die.

Shortly before the bill signed by Brown was to go into effect this fall, a coalition of bail bond companies, those with the most to lose under the new law, succeeded in gathering the signatures necessary to place the matter before voters. The referendum, said Cesar McGuire of Bail Hotline Bail Bonds, will allow voters to reverse the “misguided law,” and protect the fundamental interest of insuring that defendants appear at trial.”

Their referendum will appear on the November 2020 ballot, allowing California voters to decide this question at the same time that they weigh in on the next president of the United States.

Both sides have points in their favor in this debate. As the bail companies note, the public is protected by assurances that those who are accused of crimes appear to answer for them; critics, meanwhile, are right that fairness demands that the same assurances apply to defendants no matter their wealth. Where defenders of the status quo lose out, however, is in the wholesale defense of a system that clearly permits inequity without making a convincing case that it’s the only way to force defendants to appear.

As with so many complicated issues that are hashed out in California, this would be better handled by seasoned legislators in consultation with experts. Indeed, the Legislature did its best to handle this the right way. But direct democracy is a demanding process, and this is destined for at least one more round. Voters will get their chance to protect the public and insure fairness when this appears before them in November.

Jim Newton

Jim Newton

Jim Newton is a veteran author and journalist who spent 25 years as a reporter, editor, bureau chief, editorial page editor and columnist at the Los Angeles Times. He is the author of three critically acclaimed books of biography and history, and he teaches at UCLA.

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