Push to Limit Money Bail Gains Steam in California

Every year in California, nearly 1 million people are arrested and booked into jail.

Their freedom before they go to trial often hinges on a century-old money bail system that critics say favors the rich: If you can pay, you’re free -- and if you can’t, you’re stuck behind bars.

Now, California has joined a push for reform that spans at least two dozen other states. Legislation making its way through both the California state Senate and Assembly would move away from cash bail, instead directing courts to release most people if they don't pose a risk to public safety and are likely to show up to their court date.

The legislation is sponsored by two Democrats: Los Angeles Sen. Bob Hertzberg and Oakland Assemblyman Rob Bonta, with 15 other lawmakers signed on as co-sponsors -- including one Republican. They argue that more than 60 percent of California jail beds are filled with people who have not been convicted of a crime, and that many of them would be at home with their families if only they could afford to bail out.

"What we are going to talk about as this bill hopefully moves forward is this larger dynamic of injustice -- somebody who is arrested, and because they don’t have the few bucks to get out of jail, they’re sitting in jail," Hertzberg told a Senate committee recently. "And they are sitting there, often copping a plea with credit for time served for a crime they were never convicted of. That is not justice."

At the same hearing, Bonta told lawmakers that the current bail system is "broken" and that California should lead the way as it has in enacting other criminal justice reforms.

"This bill helps achieve a trifecta -- a win, win, win, where we are providing more justice for individuals who are arrested," Bonta said. "So they won't be discriminated against because they are poor; where we will be providing enhanced public safety because we will be using tools that will determine the public safety risk of an individual, and the flight risk of an individual, rather than using money and ability to pay as some rough and far from prefect proxy for safety."

Bonta also made a fiscal argument for the proposal. Rather than spending $100 a day to keep someone in jail, he said, the bill would allow more people to wait for their trial at home with their families.

How the Current Bail System Works

When someone is arrested for a crime and booked into jail, a court usually sets a bail amount. Those amounts vary from county to county. The median amount in California is $50,000. The bail is like collateral -- it's meant to make sure the defendant comes back to court.

To get out, one option is to give the court the full bail amount. When the case is over, you get that money back (even if you're found guilty).

But since most people don't have thousands of dollars to plunk down, private bail companies -- which are backed by large insurance firms -- offer a service. You pay them a nonrefundable fee -- about 10 percent of the bail amount -- and they promise the court you’ll show up. If you don't, the bail agent is supposed to find you or else pay the court the full bail amount.

The U.S. and the Philippines are the only two countries with a for-profit bail system.

Supporters of bail reform say the bail system is not really working the way it's supposed to.

They point to people like 27-year-old Gabriell Molex, a mother of two who was already homeless and living out of her car when she was arrested in March.

Molex was picked up on two misdemeanor charges -- driving on a suspended license and check fraud. Her bail was set at $20,000. She couldn't afford to pay a bail company to get released. She spent more than a month in jail, during which time her life was turned upside down.

She lost her job as an in-home health care worker. And her car -- her only possession -- was impounded and then destroyed, after sitting in the impound lot for too long.

"Everything, everything, I lost everything," she said. "I came home to my kids, so that was great."

Eventually, Molex said, she pleaded guilty just so she could get back to her two young daughters. They stayed with their grandmother while Molex was in jail.

Stories like Molex's have helped push this issue onto the national stage -- there are reform attempts happening in two dozen states; and in January, New Jersey enacted sweeping legislation that has nearly ended for-profit bail there.

Changes are not only being pushed in statehouses. There are numerous lawsuits across the country arguing bail just isn’t constitutional. In Texas, a judge recently issued a 193-page ruling overturning Harris County's bail system -- the ruling is sure to be appealed, but it's seen as a huge victory for proponents of change.

And in California, a lawsuit challenging San Francisco's bail system is now being fought by the bail industry itself after City Attorney Dennis Herrera refused to defend the system.

What's the Alternative?

The proposal by Bonta and Hertzberg would make counties set up a system to review a suspect and their likely public safety risk when they’re arrested, and give the courts a recommendation about any terms of release. The legislation directs courts to base any release decision on whether someone is likely to reoffend or show up in court -- in most cases, judges would have to release people without bail.

But there could be conditions on their release -- for example, someone could be asked to check in with a probation officer, or wear an electronic monitor such as an ankle bracelet. People charged with violent crimes wouldn't qualify. And while bail would still be an option, under the legislation it would be the last one.

Not everyone’s on board. District attorneys, many law enforcement groups and even some judges have raised concerns. They say the bill could result in people staying behind bars longer while they wait for counties to conduct those assessments, and they raise questions about the costs of setting up an alternative pretrial system.

But leading the charge against the bills is the hugely lucrative bail industry, which brings in about $2 billion in profits nationwide every year.

Jeff Clayton, head of the American Bail Coalition, said in a recent interview that bail isn’t the problem in California -- the problem is that bail amounts are too high. He would like to see the state lower bail schedules and make them uniform across the state -- currently they're set county by county -- and he argues that pretrial release without bail raises civil liberties concerns.

Under the proposed changes, he said, "we are going to say, 'You can't afford the bail I just posted for you and we are putting you on house arrest, ankle monitors, all this sort of thing.' And I think really, if we look at what’s least restrictive, if somebody can post bail that’s really the best thing for them from a civil rights perspective," he said.

The bills face some key committee votes later this week.