The Pros and Cons of Bail Reform

We’ll see how California’s new bail law plays out in practice.

On one hand, it promises to treat rich and poor alike when it comes to keeping someone in jail until any trial. It says everyone will get out within twelve hours on a misdemeanor charge, with some exceptions. And if you’re accused of a felony (or one of the misdemeanor exceptions), a new pretrial-services agency will review your risk to public safety and your risk of not showing up to court and classify you as a low, medium, or high risk. Then the agency or the court will release you—or not—with the least restrictive conditions that reasonably assure public safety and your appearance in court. But regardless, it says we won’t lock up poor people before any conviction just because they can’t cough up a big chunk of change.

Fair enough.

But here are five pitfalls to consider.

The misdemeanor rule won’t matter if we don’t arrest and book people for misdemeanors. Misdemeanors may be the meat and potatoes of the justice system, but I have it on good authority that we overbook people for felonies all the time. Sometimes, it feels like everything is a felony that raises the bond amount in a money bail system. But unless we book people for misdemeanors when they should be misdemeanors (if anything), the new way of doing things may be worse for everyone.

The misdemeanor rule doesn’t apply to misdemeanor domestic violence, among other exceptions. And domestic violence is as common a charge as you’ll find in the justice system, behind drugs and DUIs.

If you’re booked for a felony or one of the misdemeanor exceptions, you won’t get out for one to three full days. Good luck with that. The law says pretrial services will review your case within 24-36 hours, so you’re not getting out before then anyway. But even if you’re a low or medium risk, there’s no chance they’ll release you before arraignment in a lot of cases that may surprise you. These include domestic violence, certain DUI cases, any case that would require sex-offender registration, and any felony that alleges violence or even the threat of violence. If pretrial services doesn’t release you, you’re constitutionally entitled to appear before a judge within approximately 48 hours. But if you happen to get popped on a Friday, you could be in jail for three nights with no ability to post bail and get out. I don’t know about you, but that doesn’t sit well with me.

It may not be hard for the system to classify you as medium or high risk. One of the things that it looks at is the charge they booked you for, so that follows you. Then they look at your rap sheet, your demographics, any social media you put out there, and whatever computer program they may use. Add those things up, and it may not be hard to say there’s a “moderate” risk you won’t show up to court or will commit a new crime (any crime) if released. That would classify you as medium risk, which means you could be kept in custody. And all it takes to classify you as “high risk” is a “significant” risk of those things happening. Although these words are better than no law at all, they’re naturally subject to interpretation.

Ultimately, the law relies on judges to release people on reasonable conditions. That’s not inherently good or bad, but judges are people like everyone else. They can yield to outside pressures or self-interest. That may not matter in the easy cases, but in others, judges may default to the choice that’s guaranteed not to bite them in the backside. Which means you will sit in jail until your trial. Or until you cop to something so you can get out.