California to End Money Bail

On August 28, Governor Brown signed Senate Bill 10 into law. It becomes effective October 1, 2019, and as you may have heard, it changes everything. It completely repeals the chapter of the Penal Code that provided for cash bail and replaces it with an entirely new one.

Here’s the gist of it.

If you’re arrested for a misdemeanor, you will be booked and released within twelve hours of booking. But this won’t apply if you’re arrested for stalking, domestic violence, or violating a restraining order by violence, threats of violence, or going to the person’s home or workplace.

Otherwise, a new pretrial-services agency will review your case within 24-36 hours. They’ll run your rap sheet, consider the charge you were arrested for, and look at whether you’ve failed to appear in court before in the last three years. They’ll consider any other information they receive from you, your lawyer, the alleged victim, or law enforcement. And they’ll run you through a computer program that assesses your risk of committing a crime or not showing up to court if you’re released.

Then they’ll classify you into one of three categories based on your risk to public safety and your risk of not showing up to court. You are “high risk” if there’s a significant risk you won’t show up to court or that you’ll commit a crime if you’re released. You’re “medium risk” if there’s a moderate risk of those things happening. And you are “low risk” if there’s a minimal risk of them happening.

Your category determines whether you’re released and how. If you’re low risk, the pretrial-services agency will release you on your own recognizance with the least restrictive set of conditions that will reasonably assure public safety and your appearance in court. If you’re medium risk then you may be kept in custody or released according to local rules and standards that each county must create, and if you’re released, you may be released with close supervision. And if you’re high risk then you’re not going anywhere until at least your arraignment.

But even if you’re considered low or medium risk, you still won’t be released before arraignment in many cases, including the following significant examples:

• You won’t be released on what’s considered a serious or violent felony.
• You won’t be released on what’s considered a serious or violent felony or misdemeanor that requires sex-offender registration.
• You won’t be released on a felony that alleges physical violence, the threat of such violence, or the use of a deadly weapon.
• You won’t be released on a third DUI offense within ten years.
• You won’t be released on any DUI that injured someone.
• You won’t be released on any DUI with a blood-alcohol concentration of 0.20 or more.
• You won’t be released on a restraining-order violation.
• You won’t be released if arrested while on pretrial release, probation, or parole.

At your arraignment, the pretrial-services agency will report its findings to the court and recommend any conditions of release. The alleged victim can weigh in, too. The court will then order you released on the least restrictive conditions or set of conditions that will reasonably assure public safety and your return to court.

But at any point, prosecutors can move to detain you until trial. They can file that motion if, among other reasons, you were arrested for a crime of violence or threatened violence, or if there’s substantial reason to believe that no condition or set of conditions will reasonably assure public safety or your appearance in court.

Then the court must hold a hearing in short order and decide whether to detain you or not. If the court orders you detained, its decision must be based on clear and convincing evidence that no condition or set of conditions will reasonably assure public safety or your appearance in court. And if so, it must state its reasons on the record. Otherwise, it must release you on your own recognizance and impose the least restrictive conditions that reasonably assure public safety and your appearance in court. In making this decision, the court may consider any relevant information including the nature of the charge, the weight of the evidence against you, your personal history and community ties, the pretrial agency’s recommendation, and any plan for supervision.

For more on the end to money bail in California, here’s coverage from the L.A. Times, the San Francisco Chronicle, and The Marshall Project.