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Attorneys William R. Christoph & Nicholas W. Christoph

Why California’s elimination of cash bail is so controversial

California has abolished cash bail, but its replacement system could see more people going to jail.

In August, as the Sacramento Bee reports, California lawmakers took the dramatic step of eliminating the state’s cash bail system. The change is set to take effect in October 2019. Bail, which allows individuals charged with certain offenses to put up a cash guarantee that they will show up in court, has been criticized for unfairly targeting low-income families. Those who can’t afford bail, even for relatively minor criminal offenses, can end up spending excessive time in jail as they await trial. However, while many civil liberties groups support eliminating cash bail, they contend that the way California is doing so could actually lead to more individuals from low-income and ethnic minorities being put behind bars.

What’s bail and what’s wrong with it?

In many cases, if a person is charged with a crime, they have the option of depositing a cash bail with the court. The money is essentially a promise that the accused will show up for their court date. If they show up for their court date, they get the money back; if they don’t, they lose the money. Because most individuals cannot afford bail on their own, they typically pay a fee, which is a percentage (typically 10%) of the bail, to a bail bond agent, who in turn posts the full bail amount on their behalf.

The problem with bail is that it disproportionately victimizes people from low-income backgrounds. Those who cannot afford bail can end up spending long periods in confinement pending trial or resolution, which in turn can lead to them losing their jobs and dramatically disrupting their lives.

What’s wrong with California’s reforms?

The California law eliminates cash bail and instead replaces it with a risk assessment system focusing on danger to the community and likelihood to make future court appearances if released. Releases could involve a number of possible conditions like GPS monitoring or checking in with the Court regularly pending case resolution. A defendant deemed a “low” risk would be released, while one deemed a “substantial” or “high” risk would remain in jail pending final resolution. Judges would have discretion about whether or not to release those deemed a “medium” risk.

While many civil liberties groups support eliminating cash bail, they say that California’s new system will actually lead to more people being put behind bars before trial. The risk assessment system could actually perpetuate racial stereotypes. For example, because black and Hispanic Americans are overrepresented in arrest records, a supposedly unbiased risk assessment system could deem a black American charged with a crime to be a greater risk than a white American living a similar lifestyle who is charged with the same crime.

Furthermore, as the Washington Post points out, a recent study found that only 5 percent deemed at the highest risk in a federal risk assessment actually failed to appear in court. That means that despite a 95 percent chance that a “high” risk defendant will show up for court, they could nonetheless be held in jail.

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