Bail law might leave some accused stuck in jail

On Tuesday, with the stroke of a pen, Gov. Jerry Brown turned criminal justice in California upside down. Senate Bill 10, which takes effect Oct. 1, 2019, abolishes the state's money bail system and replaces it with one that has the potentional to put an arrested person's freedom entirely in the hands of a judge.

Previously, for most offenses, a person was able to bail out at the police station. Under SB 10, for some offenses, a person will have to wait in jail for up to three days to be assessed at arraignment to determine whether they should be released.

This plan undermines the presumption of innocence that is a cornerstone of criminal justice in the United States.

Brown said, "Today, California reforms its bail system so that rich and poor alike are treated fairly." Correction: Now the rich and poor alike will be treated unfairly.

Allow me to illustrate: On Friday night, two men get drunk at a bar and get into a scuffle that results in a minor injury. The police are called and arrest the man who is less injured. Erring on the side of the caution, which they often do, the police book him for "felony battery." Before SB 10, the police would set bail at $50,000. The man could bail out for $5,000, of which he could provide $1,500 and pay the remainder in installments. His court date would be around 30 days from the arrest date. During that 30-day period, he would have an opportunity to select an attorney and prepare for the arraignment. And his attorney would have an opportunity to present exculpatory or mitigating evidence to the investigating officer and/or prosecutor to try and avoid or reduce the charges.

Under SB 10, this person will remain in jail the entire weekend. He will have no opportunity to hire his own lawyer. He will not have the ability to present exculpatory or mitigating evidence prior to the filing of charges. And now, the first impression of the accused that the judge and prosecutor will get will be that of a person who is unshaven, unkempt and sleep-deprived. The initial detention period will pressure prosecutors to rush to file charges within three days of the arrest, which could result in more charges being filed than otherwise would be had there been more time to make that filing decision.

The new law also creates an all-or-nothing decision for the judge at arraignment. This is problematic because sometimes people fabricate or exaggerate allegations in the heat of an argument. When tempers cool, they reconsider their desire to press charges. If someone bails out, the complaining witness explains why he or she no longer wanted to press charges, and the case gets dismissed; the loss to the accused is his bail money and a few hours in the tank. Under SB 10, that person could remain in jail for weeks on end, until the truth surfaces and the case is dismissed.

Under prior law, the judge would set an appropriate bail amount. If the accused bailed out and then violated a condition of release, there would be consequences. The judge wouldn't be labeled as "too lenient" for that person having made bail. Under SB 10, judges may feel ever more pressure from the concern that something could happen if an accused is released -- in turn causing judges to release fewer defendants. No judge wants the headline, "Judge X decided to release Mr. X who then committed XYZ."

Based on the reputational concern and lack of uniform guidelines for release, judges will end up keeping more people incarcerated while their cases are pending. This leads to one of the worst injustices of all: People pleading guilty to crimes they did not commit so they can be immediately released and avoid remaining in jail for 30 days or more until their trial date. There are several jails throughout California that easily rank among the most heinous places on earth. The temptation to be set free is too great, and the innocent will sadly seize any opportunity to get out -- even if it means pleading guilty to something they didn't do.

It was once said that "the road to hell is paved with good intentions." With that in mind, who wants to take a ride on SB 10?