California’s Efforts to Reform Bail Leaves Much to be Desired

By Jules Hayer

Associate Editor, Vol. 24

California Governor Jerry Brown Addresses Dept. Of Justice Lawsuit Against CaliforniaDespite recent developments in California to overhaul the bail system, the state still has a long way to go in order to create effective change. In January of this year the California Court of Appeals ruled that, before setting bail, judges must take into account the financial situation of a defendant and determine whether the defendant can be released without imposing a danger to public safety.[1] Moreover, the prosecution bears the burden of presenting clear and convincing evidence which establishes that no conditions of release would ensure the safety of the community, thus requiring the confinement of the person while awaiting trial.[2]

In In re Humphrey the court attempted to acknowledge the poverty of the defendant by lowering the initial bail amount from $600,000 to $350,000. However, this reduction was meaningless since the court had no reason to believe that there would be any material difference in the defendant’s ability to pay the new amount versus the old amount.[3] While the lower court relied in part on a bail schedule in assessing this amount, the court noted:

“…unquestioning reliance upon the bail schedule without consideration of a defendant’s ability to pay, as well as other individualized factors bearing upon his or her dangerousness and/or risk of flight, runs afoul of the requirements of due process for a decision that may result in pretrial detention…the important financial inquiry is not the amount prescribed by the bail schedule but the amount necessary to secure the defendant’s appearance at trial or a court-ordered hearing.”[4]

The court emphasized that bail cannot be a means of imprisoning someone “solely due to poverty” and that extensive safeguards are critical to prevent people from being locked up solely due to insufficient funds.[5]

In the closing remarks of Humphrey the court acknowledged that while legislation was desperately needed in this field, the administration of the bail system was unfortunately currently consigned to the courts.[6]  Heeding the court’s judgment, in August, Governor Brown signed a landmark reform bill that abolishes bail for those awaiting trial.[7] The California Money Bail Act demands that courts evaluate a defendant on their risk to public safety and on the likelihood that they will show up for their court hearing, rather than on the ability to post bail.[8] While a number of states have made recent efforts to reform their bail system to provide more equitable justice to poor people, California is the first state to pass a law that eliminates the bail system completely.[9] This Act will go into effect in October of 2019.

Unfortunately, this new law leaves much to be desired. It grants an unwarranted amount of discretion to the same courts that have historically marginalized the poor, and still mandates categorical assessment of individual people. Specifically, the law requires that California’s judicial body create a system of pretrial assessments that will classify individuals as “low risk”, “medium risk” or “high risk” by Pretrial Assessment Services. This tool is already used in some areas of California but the law makes this Assessment mandated state-wide.[10] The goal of this tool is to categorically assess the likelihood of a person missing their scheduled court date or getting re-arrested before their scheduled court date.[11] However, computer algorithms similar to those which are expected to be used in California have been said to be biased against people of color.[12] For example, many of the algorithms currently in place take into account past arrests even when this arrest is not followed with a conviction, thus further perpetuating racial bias in the criminal justice system.[13] As such, even those that pushed this reform forward by way of arguing the Humphrey decision concede that “under the new law, there would be a “presumption against release”[14] for the kind of offense that Humphrey was charged with. Due to these issues, many civil rights advocates withdrew their support for the bill as it was passed, including the American Civil Liberties Union, Human Rights Watch, Civil Rights Corps and California Attorneys for Criminal Justice.[15] Essentially this reform bill simply eliminated the cash element of bail but this change just further concentrates the power to determine bail eligibility in the hands of judges.

We still have a year until the California Money Bail Act goes into effect and therefore only time will tell what concrete implications this has on the incarceration of poor people of color. However, this bill demonstrates how difficult it is to pass legislation that truly begins to move us in the right direction and is a concrete reminder of how far we still have to go.


[1] In re Humphrey, 19 Cal. App. 5th 1006 (Ct. App. 2018).

[2] Id. at 41.

[3] Id.

[4] Id. at 39-40.

[5] Id. at 35.

[6] Id. at 46.

[7] S.B. 10, Chapter 244. (Approved by Governor Brown August 28, 2018), Available at https://leginfo.legislature.ca.gov/faces/billTextClient.xhtml?bill_id=201720180SB10.

[8] Thomas Fuller, California Is the First State to Scrap Cash Bail, N.Y. Times (Aug. 28, 2018), https://www.nytimes.com/2018/08/28/us/california-cash-bail.html.

[9] Id.

[10] Id.

[11] John Rapling and Pete White, California’s New Money Bail Reform Won’t Actually Reform an Unjust System, Los Angeles Times (Sept. 5, 2018), http://www.latimes.com/opinion/op-ed/la-oe-raphling-white-money-bail-reform-20180905-story.html.

[12] Julia Angwin, Jeff Larson, Surya Mattu and Lauren Kirchner, Machine Bias: There’s software used across the country to predict future criminals. And it’s biased against blacks, ProPublica (May 23, 2016), https://www.propublica.org/article/machine-bias-risk-assessments-in-criminal-sentencing.

[13] Alisa Chang, Why The ACLU Opposes California’s Decision to Eliminate Cash Bail, National Public Radio (Aug. 29, 2018), https://www.npr.org/2018/08/29/643062086/why-the-aclu-opposes-californias-decision-to-eliminate-cash-bail.

[14] Fuller, supra note 9.

[15]Meagan Flynn, California Abolishes Money Bail With a Landmark Law. But Some Reformers Think It Creates New Problems, (Aug. 29, 2018), https://www.washingtonpost.com/news/morning-mix/wp/2018/08/29/california-abolishes-money-bail-with-a-landmark-law-but-some-reformers-think-it-creates-new-problems/?noredirect=on&utm_term=.c9fc23da51e4.

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