Lawmakers say they will introduce bills to alter bail system

On Monday, the first day of California's new legislative session, lawmakers in both houses said they plan to introduce mirror-image bills that aim to radically alter the state's bail system.

Proponents of bail law changes argue that the current system punishes only those who cannot afford to post bond.

California Supreme Court Chief Justice Tani G. Cantil-Sakauye summarized those concerns in her March State of the Judiciary address, saying, "I think it's time for us to really ask the question whether or not bail effectively serves its purpose, or does it in fact penalize the poor."

Yet members of the bail bond industry are concerned that the deck may become stacked with too many Get Out Of Jail Free cards. Without a financial incentive to face justice, they argue, criminals could remain free, and the proposed alternatives are impractical at best and dangerous at worst.

"If the purpose of bail is to incentivize appearance for trial, there's two things the government can do: deprive you of liberty or deprive you of property. What other incentive would you propose?" asked Donald Kilmer, an attorney who represents Bad Boy Bail Bonds, a member of the Golden State Bail Association.

While details of the proposed legislation from Sen. Robert Hertzberg and Assemblyman Rob Bonta have not yet been made publicly available, a previous bill authored by Hertzberg called for new options for low-risk arrestees ? including release on the defendant's own recognizance, release with an unsecured appearance bond, or supervised or conditional release.

A number of California counties have already begun implementing alternatives to traditional money bail, including Alameda, Santa Clara, Monterey, Santa Barbara, Ventura, Lassen and Yuba.

In an Orange County pilot program operating since February, risk assessment plays a major role in the decision to detain an arrestee.

"The idea is that when you tailor the conditions of release to the individual, you're more likely to have a good outcome, rather than the bail system where money is the only thing that counts," said Charles Margines, presiding judge of the Orange County Superior Court.

Orange County's Pretrial Services Program, currently limited to low-level offenders, uses the Virginia Pretrial Risk Assessment Instrument, an eight-factor point system to assess a defendant's risk of re-offending or failure to appear.

The factors are whether the primary charge was a felony, existence of pending criminal charges, prior convictions, violent offenses, drug abuse, history of failure to appear, less than two years at current place of employment, and less than one year at current residence.

An assessment score of one to two points would potentially qualify the offender for release without bail, pending judicial review. The court may also add conditions such as requiring a defendant to have drug testing, wear a GPS device, or report to a pretrial services officer once a week.

A score of five or higher would place the offender in the "high risk" category. Under that circumstance, Margines said, a judge would likely set a high bail per established practice.

The assessment score is not an absolute, Margines explained, and judges retain final say and may ignore the risk assessment score entirely.

In addition to risk assessment, California counties are exploring the establishment of nonprofit alternatives to commercial bail bonds, as several states have already done. These include allowing direct court payment of partial bail deposits and expansion of programs such as pretrial diversion, electronic monitoring, and pretrial supervision.

Such programs could achieve the goal of lowering incarceration, its resultant costs and disruptive effects on defendants.

Bail opponents have also argued that the current system is unconstitutional.

In a federal case in Alabama, the government filed a Statement of Interest stating, "Incarcerating individuals solely because of their inability to pay for their release, whether through the payment of fines, fees, or a cash bond, violates the Equal Protection Clause of the Fourteenth Amendment." Varden v. City Of Clanton (2:15-cv-34-MHT-WC Feb. 2, 2015).

Harmeet K. Dhillon, counsel for the California Bail Agents Association, noted that the equal protection claim raised in Varden was identical to that made in the California case Welchen v. County of Sacramento and Kamala Harris, 2:16-cv-00185-TLN-KJN, 2016 WL 5930563 (E.D. Cal. Oct. 11, 2016).

Last month, that claim was dismissed on the grounds that wealth is not a suspect class for constitutional analysis purposes, and the bail system does not violate equal protection because it does not make classifications based on wealth, but rather on the seriousness of criminal offenses, Dhillon said.

"If it's not broke, don't fix it," said a report from Golden State Bail Agents Association issued in response to Santa Clara County proposals to revamp money bail, which the report said "will turn Santa Clara County into an attractive venue for crime."

The association argued that the existing system, which frequently compels arrestees to turn to friends or family for help, "is a feature ? not a bug."

"Either the defendant is engaging in criminal conduct and needs the attention of his/her peer group and family, or they are innocent and need the support of that peer group and family. The bond agent is merely providing the tools to get that job done," the association said.

Jeffrey Clayton, policy director of the American Bail Coalition, expressed concern that pretrial services and risk assessment systems are expensive to staff and implement.

"I'm baffled as to how they're going to afford it," Clayton said, and added that risk assessment tools tend to be overly conservative. That could lead to even higher pretrial incarceration rates and, in turn, higher costs for counties, he said.

"How can the government start accessing risk?" asked Kilmer. "The government is not neutral. The government is the one charging you with a crime."

Kilmer also expressed doubt about alternatives such as GPS monitoring: "Electronic monitoring isn't free. Are we going to order people to pay for their ankle bracelet? Why not ask them to pay their bond?"

Kilmer said reform of the bail schedule is more pressing than making changes in the for-profit bail industry, and he would prefer to see a uniform, statewide bail schedule rather than bonds that vary widely from county to county.

As for the role of affluence in pretrial release, Kilmer said, "Wealthy people can also hire a dozen lawyers rather than one overworked public defender. We engage in the fantasy that because we provide public defenders to everyone, that solves the problem. It doesn't."

Yet Margines maintains that pretrial incarceration can have a far-reaching impact on a defendant whose guilt is not yet proven, especially if that person is a caregiver or the family breadwinner. "I want to emphasize that not all people arrested will be released," Margines said, "but the goal of this alternative is to release people who are such low risk that they should not be sitting in jail."

lj_williamson@dailyjournal.com