Many people are concerned with
the oncoming cash bail reform that will take place in California. It’s due to
take effect on October 19, 2019, ending a 40-year system and becoming the first
state to ever do so. Some people have praised it, with California’s Governor
Jerry Brown calling it a way to “…treat rich and poor fairly…”as reported by
CNN .
Others have criticized the bill’s
method. NPR writes that one of its original
supporters, the American Civil Liberties Union of California, have changed
their stand and accuse the reform of encouraging further bias. There are also
150 bail bond agencies now seeing the reform as a threat to their livelihood.
How exactly will this affect
the future of the justice system? To find out, here’s a detailed look at what
cash bail bonds are, and how the reform changes the current system:
What are bail bonds?
A bail bond is a surety bond
used for arrestees in different criminal cases. Here, the arrested persons are
detained before a court hearing. The bail bond is used to let them out of detention
earlier. These bails are posted by a licensed agent, acting on behalf of
licensed surety insurance companies.
The current bail bond scheme
The current cash bail bond
scheme uses monetary payment to release detained persons before their court
hearing. It uses many different steps to determine if the bond can be posted
and accepted. Here’s how it works.
Determining the bail
When a person has been
arrested, they are sent to jail and detained until a bail hearing. At the
hearing, the judge will set a specific amount. Those who can pay it off can
leave the detention facility, but must attend their court trial. Those who
cannot are kept in detention, until their court trial date.
Contacting for bail
When a relative or acquaintance
of the arrested calls for bail, they must contact a licensed surety insurance
company. These companies have representatives, known as “bail agents.” The
person acting on behalf of the arrested must inform the bail agent about the
bond they need. This includes details about the case such as the name of the
arrestee, the charges filed, and the location of the facility they are detained
in.
Payment to the agent
Paying the agent is key to
posting bail. Usually, agents charge between 10-15% of the total bail needed.
However, that can change depending on the location of arrest and the
circumstances of the crime.
Sometimes the payment is given
through collateral. These are items belonging to the defendant or the one
posting the bail, something of value that can substitute for money. These
include jewelry, private vehicles, and even property.
Processing of the bail
Once the transaction is made,
the bail agent posts the bond to the court. This allows the defendant to leave
the facility. However, they are required to return for their next court
hearing. There may also be conditions set by the agent, which the defendant
must meet.
If they do not show up or
violate one of the conditions set, the agent is forced to pay the entire bail
amount as recompense. In turn, the agent finds the defendant and sends them
back to jail.
If the contract is completed,
whether the defendant is guilty or not, collateral can be returned. If the bond
is violated, they could be permanently lost as a result.
The upcoming cash bail reform
Now that you know how the current
bail system works, you can better understand the changes the upcoming reform
bill will enforce. These are the adjustments you can expect once the Bail Bond
Reform takes effect.
Cash won’t be used
The first and most important
change is that cash bail will no longer be accepted. Simply put, your cash
won’t get you out anymore.
Risk assessment
Since cash bail is no longer
used, that presents another problem: how can defendants post bail? It would be
unjust to simply lock them up or let them go before their hearing, since that
would be ignoring the severity of their crimes (severe crimes are usually
denied bail, as will be explained further).
Instead, the decision to bail
is now judged on a risk-based system. This will be used to determine if a
defendant can leave detention earlier than his court date. It will be tabulated
by local agencies who will determine if the defendant is likely to return for
his hearing. It also checks if the person is likely to be arrested again.
There are three key levels in
this system. The first is “low risk,” where a person is not identified as a
threat or possible escapee. That defendant will be released, but there might be
other conditions to ensure they go to the hearing.
The second level is “medium
risk,” wherein a person could be a risk to public safety. This level is where
the local agencies will determine if that person can leave or is held in
detention.
Lastly, there is “high risk,”
wherein a person is considered a threat and likely to escape. At this level,
all defendants would be denied bail. This covers possible felons and sex
offenders, violators of parole, and drunk drivers charged for the third time.
Defendant-specific rules
Because of the risk system,
another big change is to the defendant’s bail option. In the old system, many
crimes could be bailable through the judge’s decision. The only requirement
needed is to pay off the resulting bond.
However, the reform changes
that completely. Instead, only certain defendants can ever be allowed to leave
detention early. Others would be required to stay until their court hearing.
Changes from the Reform
Both left-wing and right-wing
parties have looked at the Bail Bond Reform, and have pointed out key facts
that make it useful, and can be detrimental. Here are the positive and negative
changes that could come from this.
Pros
Many people have claimed that
the new system is a breath of fresh air. These changes are cited as the best
reasons to abandon cash bail.
Equal ground
According to KCRA 3,
Gov. Brown said the old system was “…outdated, unsafe, and unfair…” That’s
because the biggest complaint about the current bail system is that anything
can be bailable, with the right amount of cash. This was seen as an economic
bias, hurting the poor more than the rich.
Court-based responsibility
Per the new reform, all 58 of
California’s superior courts would devise their own risk system. This puts a
new level of responsibility, wherein the court themselves or a trusted
organization can set the standards.
In that same KCRA 3 article,
Clark Kelso, a law professor in McGeorge School of Law, says the system must be
done through “scientifically validated risk assessment tools.” This emphasizes
evidence-based research as a reason to release or detain defendants.
Monitoring of defendants
Now, the courts would have to
determine if a defendant can leave or not. While it may slow down proceedings,
it would ensure authorities will be taking a closer look at all possible
criminals.
Negative changes
Not everyone is happy with the
bill reform. At the start, it was mentioned that even former supporters have
looked changed their stance on it. Here are some arguments on why the reform
may be more dangerous than expected.
Accountability
With the judges having more
power to determine who is going to stay incarcerated and who will be let go.
There is no way of knowing if an offender of a misdemeanor crime will walk out
and commit another crime. There is no accountability when offenders of any
crime has been released.
As we know, California is
extremely over populated. Therefore, the police force will not have the time or
budget to hire many new police officers to make sure the offenders show up to
their court appearances.
Bail Bondsmen take on this task
at no cost to the taxpayers and courts, to make sure that all offenders will
show up to court. Also, Bail Bondsman will apprehend their own
fugitives at no cost to the taxpayers.
Will the general public really
be safe after the cash bail reform goes into effect in October 2019?
California residents already
know about the increasing cost of living. With the cash bail reform, taxpayers
will see this increase. As stated by ACLU, NAACP and Human Rights Watch, “The
real goal was fewer people in jail before trial. They now worry that California
will head in the opposite direction.”
Loss of work
One noted complaint has been
presented by the entire bail bond industry. With this new reform, agencies in
California would lose their branches or even their whole business. Greg Padilla
of Sacramento, a bail bondsman, even said the reform is “…supposed to eliminate
it completely…” according to the previously mentioned KCRA 3 article. Simply
put, many agents would end up without a job by October of next year.
Abuse in bias
Many citizens are worried that
the courts in charge would be given all the power. In their eyes, defendants
could be incarcerated even before conviction. Whether innocent or guilty, those
placed at medium or high risk could still be held without bail. The ACLU stated that
the bill doesn’t sufficiently address or reduce possible racial bias in the
decisions of the court.
More detention
Because bail won’t be posted,
some say it will lead to a substantial rise in detained persons. The ACLU cited
it doesn’t guarantee a reduction in pre-trial detainees. For example, the ACLU’s Natasha Minsker said
that the bill was “…too heavily weighted towards detention.” Rather than
protecting the people, there’s a worry that it could cause more harm for those
being held.
Conclusion
With these different reforms,
there is no doubt that the current bail bond system and industry is put at
risk. From a cash-based bailout, defendants will now have to be assessed. The
results could either set them free or be detained. Although it removes money as
leverage, only time will tell whether the new system will work or not.
