California’s Bail System and a Move for Change

Bail is collateral intended to motivate a potential defendant to participate in the criminal proceedings. When most people get arrested in San Diego County, they are booked into jail and bail is set based on a bail schedule. For instance, the standard bail for a DUI (VC 23152) arrest is $2,500, for an assault with force likely to produce great bodily injury (PC 245(a)(4)) it’s $30,000, child cruelty or injury on a child can range between $50,000 and $100,000.

Once in custody and processed, the individual can elect to post bail and be released (except under limited circumstances). Most of the time, a bail bonds agency is used to post the full amount of the bail, and a 10% fee is assessed. For instance, if a suspect bails out on $100,000 bond, that person will owe their bail bonds agent $10,000. This fee is non-refundable and goes directly to the agent. Once the case is resolved (or if no charges are filed) the bond is exonerated and the bail bonds agent obtains the $100,000 back from the court.

Sometimes, the prosecuting agency reviews the case and decides not to file charges. If the arrested person decides to stay in custody, the prosecuting agency has 72 hours to make a filing decision. If no charges are filed by that deadline, the person must be released. There are instances where the person bails out, no charges are filed, and months later the prosecuting agency decides to act and re-arrests the person. If that person wants to be released again, they may have to pay an entirely new fee to the bail bonds agent for the new bond. There are also circumstances where the person bails out and no charges are filed at all.

Another issue is that the charges someone is booked under do not always end up being what the person is charged with by the prosecuting agency (see a related post on “pressing charges” and who makes decisions regarding the filing of charges). On various occasions I have had clients booked on an alleged felony violation carrying $100,000 bail, they bail out, and then are only charged with misdemeanors. Guess what? They don’t get a discount or partial refund on the $10,000 bail fee.

Concerns have been raised about the fairness of the bail system, both intrinsically, and in relation to those with low income. Two people are arrested for the same suspected crime, one can afford to bail out while the other cannot. Doesn’t seem fair that one’s freedom is predicated upon one’s wealth. Being in custody has its own issues (e.g. losing a job, medical concerns, safety, etc.), but it also presents obstacles to the person’s ability to assist in their own defense. There are currently proposals before the California legislature that are intended to address this disparity.

The purported goal of bail is to encourage the defendant’s participation in the criminal proceedings, i.e. that the person shows up to court. The idea is that if the bail monies are kept as collateral and are at risk of being forfeited if the person flees, the person has a strong incentive to stay and be subject to the justice system.

During an initial bail setting hearing (at arraignment), the judge can increase the bail beyond the bail schedule, keep it the same, decrease it, or allow the person to be released on their own recognizance (no bail, just a promise to appear). In fact, the law requires that the judge assume, for the purposes of setting bail, that the charges are true (a defendant is then entitled to a bail review after having time to go over police reports and other evidence related to the allegations).  When setting bail, judges will consider risk of flight (including ties to the community), the defendant’s criminal history, and the severity of the alleged crime as it relates to the defendant’s danger to the community. Courts do have options for alternatives to bail, such as GPS monitoring, if the defendant meets certain conditions. In practice, however, this option is not often selected.

The current debate surrounding the changes in the bail system focuses on the efficacy of collateral in insuring defendants show up to court. Here is why I think this makes no sense. On very rare occasions do those arrested post the entire bail amount out of their own pockets. As discussed, they usually hire a bail bonds agent to post the bail and a fee is paid to the agent. That fee is due regardless of whether charges are filed. For example, let’s say I get arrested for an alleged crime and bail is set at $100,000. I pay the $10,000 fee to the bail bonds agent, they put up the full $100,000 to the court, and I am released. If I flee, the court forfeits the bond, i.e. court takes the $100,000. I already paid the $10,000, so I won’t lose $100,000. The bail bonds agent has an incentive to find me and bring me back to court so they can get their money back, but that doesn’t change my incentive or pressure to participate in the proceedings.

With an additional focus on alternatives to bail, such as GPS monitoring, the public can be safeguarded while closing the gap on the unfair impact of the current system on those with lower incomes. Moreover, the debate should acknowledge the practical realities of bail and the contrast to its theoretical purpose.

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