State’s chief justice seeks overhaul of bail system
California’s chief justice called for a sweeping overhaul of the state’s bail system Tuesday, saying that the long-standing practice of holding suspects in jail until they can post enough money to free themselves before trial is systemically unfair to poor people.
In a statement accompanying the release of a judicial report suggesting a number of broad reforms to the state’s pretrial detention system, Chief Justice Tani Cantil-Sakauye endorsed the notion of doing away with California’s money-bail system in favor of one that uses “risk-assessment and supervision” to determine a defendant’s threat to public safety and likelihood of appearing for court dates.
“I support the ... recommendation to replace our current system of money bail with one based on a defendant’s risk to the public,” CantilSakauye said. She said she hoped the report would serve as a “framework” for future discussions with lawmakers and Gov. Jerry Brown on the issue.
Her statement Tuesday reflects similar remarks she made in her March 2016 State of the Judiciary address, during which she suggested that the state’s money-bail system was both prejudiced against the poor and ineffective at preventing crime. “We must not penalize the poor for being poor,” she said at the time.
The vast majority of state courts across the country require suspects to post bail after being arrested in order to get out of jail before their trial or next court date. Each year, state court systems create guidelines to determine how much bail to assign to specific crimes, but judges have wide latitude on setting the amount for every defendant before them.
The money-bail system has long been regarded as essential to providing incentive to defendants to return to court, in order to get their money back. Some defendants whom judges deem to be dangerous or an acute flight risk are denied bail altogether.
Critics have long assailed the system as one that creates a two-tiered system of justice, one in which poor people who can’t make bail are required to sit behind bars while those who can afford to pay are able to walk free.
“Approximately two-thirds of California’s jail population — nearly 48,000 people — are sentenced and awaiting court proceedings,” Cantil-Sakauye wrote on the Harvard Law Review’s blog last week. That figure takes in people who pose public safety risks or are otherwise ineligible for release, “but it also includes a large number of people who are eligible for release but have not, or cannot, afford to post bail,” she wrote.
Court systems across the country have instituted a number of pretrial diversion programs to help keep low-level offenders out of jail. And two bills working their way through the state Legislature seek to prevent defendants from being jailed simply because of their inability to make bail.
The money-bail system in San Francisco was thrown into sharp relief in 2015 when Equal Justice Under Law, a civil-rights group, filed a federal lawsuit against San Francisco and Sheriff Vicki Hennessy, challenging the practice. The California Bail Agents Association successfully lobbied to take up the defense of the current system after Hennessy, City Attorney Dennis Herrera and then-Attorney General Kamala Harris all declined to do so.
Phil Telfeyan, Equal Justice’s
“I Justice applaud Tani ChiefG. Cantil-Sakauye’s working group for recognizing the fundamentally unfair qualities of the money-bail system.” Phil Telfeyan, executive director of Equal Justice Under Law
executive director, said his organization and the Bail Agents Association will both be asking the judge in the case next week to issue a final ruling, which could be handed down by the end of the year.
“I applaud Chief Justice Tani G. Cantil-Sakauye’s working group for recognizing the fundamentally unfair qualities of the money-bail system and calling for an end to the discriminatory practice,” Telfeyan said.