Toward a better bail system

California’s justice system has an inequality problem that is so obvious, so glaring, that a wide-ranging coalition of legal advocates — from civil liberties organizations to the California chief justice — have come together to change it.

It’s the bail system. The idea behind the cash bail system was that a defendant awaiting trial who had given the court a large sum of his or her money would be less likely to skip town.

It may sound sensible, but in practice, California’s approach to bail has exacerbated economic inequality and created a two-tiered system of justice before defendants even face their trial.

The median bail amount in California is $50,000. Meanwhile, a recent survey by the U.S. Federal Reserve found that 46 percent of Americans couldn’t afford even a $400 emergency expense.

So in a state like California, which has the nation’s highest poverty rate by some measures, what that has meant is that wealthy defendants have been able to buy their way out of jail before trial — and everyone else has not.

More than 60 percent of the people in our jails are awaiting their trials or sentencing. California taxpayers spend more than $4.5 million every day on the unsentenced jail population.

There are additional costs, too, for those stuck in custody because they couldn’t afford to pay their bail. They suffer major disruptions in their work and family lives that can reinforce the cycle of poverty.

This is inequitable and unjust, and has nothing to do with public safety. (A wealthier defendant isn’t necessarily safer for the public, she’s just wealthier.)

There are ways to scale back the use of bail without compromising public safety, and California needs to try them.

State Assemblyman Rob Bonta, D-Alameda, and state Sen. Robert Hertzberg, D-Van Nuys, have introduced AB42 and SB10. These are companion pieces of legislation that would facilitate the use of evidencebased pretrial assessment tools for judges as an alternative to the cash bail system.

The bills would require certain arrested people to receive pretrial risk assessments, which will be passed on to a magistrate or judge for a decision. Then it’s up to the judge to decide whether the arrested person can be released on his or her own recognizance, with or without certain conditions (like an ankle bracelet, for example).

There are classes of defendants — including those charged with domestic violence, stalking, rape and other violent or serious felonies — who would not be eligible for the assessment procedure.

It may sound like a huge change, but when it comes to reducing the use of cash bail, California is actually late to the party.

State legislatures are taking their cues from states such as Kentucky, which has seen early success with its fledgling assessment program, and cities such as Washington, D.C., where nearly 88 percent of defendants are already being released without cash bail.

Bay Area counties are also in the forefront.

San Francisco has been using a pretrial assessment program on a pilot basis, and the county is expecting a savings from jail usage of at least $3 million per year.

Santa Clara County has been using a risk assessment program to reduce its jail population, and it has saved $33 million in six months — with a 99 percent public safety rate for the defendants released.

Any assessment tool will have to be means-tested and evidencebased, and judges will probably use it cautiously at first. But this is a criminal justice reform that must go forward, and the state Legislature should approve these bills.