The cash bail system is a target of criminal justice reformers, who argue that bail favors the rich and hurts the poor. Eliminating bail shows up on the wish lists of several 2020 presidential hopefuls. The system is definitely broken and needs fixing, but current proposals to get rid of bail could end up making things considerably worse for indigent defendants.
Let’s be clear: The purpose of bail is to ensure that defendants appear in court and to protect the public from those who pose a threat to society. Jails are horrible places where only the very worst belong. They should not be warehouses for nonviolent offenders who can’t afford attorneys or defendants whose offenses could be classified as minor or serious at a prosecutor’s whim. When bail isn’t an option, defendants could find themselves detained for crimes involving minimal violence and low-level misdemeanors.
California’s SB 10, the nation’s first “no cash bail” law, would have replaced bail with a numerical risk assessment system. It’s a well-intentioned attempt to eliminate a two-tier justice system in which those with money can pay their way out of detention while poorer defendants remain incarcerated. The law is on hold pending public vote on a bail-industry-sponsored referendum to overturn it in 2020.
That’s a good thing. The hold provides legislators in California and across the country with a much-needed opportunity to examine the true impact of “no cash bail” and to get it right.
Let’s look at California’s trial balloon. Instead of leveling the playing field, it could have exposed both rich and poor to a higher risk of detention. Indigent defendants, unable to fight for lower risk scores, could have ended up in jail awaiting the court appearance at which their public defender was assigned, while defendants with means could have been detained for offenses, such as misdemeanor domestic violence, previously handled with bail and protective orders. Judges, relying on computerized risk assessment tools, might have ended up locking many more up.
Innocent Until Proven Guilty?
Whatever faults you may find with cash bail—and there are many—you cannot say that it doesn’t work. The American justice system, predicated on the assumption that all are innocent until proven guilty, is really administered from the opposite assumption.
At bail hearings in California, for example, the allegations of arrest reports are presumed to be true for purposes of bail. Fortunately, despite such presumptions, in most cases defense counsel can obtain a client’s release through bail. When bail is no longer an option, an escape hatch is removed for criminal defendants who pose no risk to the public.
It starts with how crimes are classified. Arresting officers and prosecutors have wide discretion to decide classification at booking or filing. California would have replaced bail with pretrial assessments using algorithms not yet developed to come up with a “pretrial risk assessment.”
It would likely have kept larger numbers behind bars pending trial, with prosecutors invoking preventive detention by bulking up misdemeanor charges to felonies and judges incarcerating defendants in the absence of clear standards for reviewing prior offenses and risk levels.
If we’re going to replace cash bail, we shouldn’t adopt a system that doesn’t work. A numerical point system cannot capture all factors relevant to determining risk in any particular case, and variables in risk assessment can easily be manipulated by law enforcement, prosecutors and probation officers. Without clarity as to how risk scores are calculated, more defendants wait behind bars for assessments to be completed.
Inherent biases against the indigent, minorities and those with mental illness lead to more being incarcerated compared with other groups.
Replace With System Fair to All—Rich and Poor
Replace bail with a system that works at least as well, a system that is fair for both rich and poor. If public safety is the true concern, in lieu of cash bail start with clear conditions for release prior to seeing a judge. Borrow from existing diversion programs when appropriate.
Instead of waiting in custody to see a judge, someone charged with domestic violence could be released subject to protective order and agreement to attend domestic violence or anger management classes or see a therapist. In place of bail, defendants or their families could put up signature bonds or promissory notes to ensure appearance at trial. Another level of review—a neutral eye—could restrain prosecution excess in filing.
Improve risk assessment to ensure that indigent defendants and those suffering from mental illness are not disadvantaged. Most will not fare well under the proposed system; poverty and mental health issues can lead to failures to appear, as well as further arrests and convictions. Place less emphasis on priors, failures to appear, and probation violations and more emphasis on efforts toward self-betterment and treatment.
Most importantly, make public defenders available earlier in the process to ensure fairness in the process. The job of defense counsel has traditionally been to argue in court for reduction in bail or release on own recognizance. Without bail, attorneys must get involved from the very outset, providing information for immediate consideration in the risk assessment process.
They can introduce evidence or supplemental factors that justify a lower risk profile and/or release and can provide the court with alternatives to detention that will protect public safety and ensure appearance at trial. Programs such as Alcoholics Anonymous (AA), Narcotics Anonymous (NA), anger management classes, psychiatric counseling, and electronic monitoring should be embraced by judges focused on reducing jailhouse populations.
Finally, consider keeping cash bail as a secondary option. Give arrestees a cash bail option for release, as well as an alternative involving conditions that do not include bail. If a defendant cannot afford bail, the non-cash bail option addresses any inequality by providing a reasonable alternative. Bail can be one of many tools available to ensure that defendants appear in court.
It may indeed be time to retire cash bail, but any new system must be structured in a way that introduces true fairness and equity into the system. Until lawmakers understand the consequences of their proposals, we could see ever further erosion of fairness and equity in the criminal justice system.
This column does not necessarily reflect the opinion of The Bureau of National Affairs, Inc. or its owners.
Lara Yeretsian is a Los Angeles criminal defense attorney and principal of Yeretsian Law. She worked on the legal teams defending Michael Jackson, Scott Peterson, and other high-profile criminal prosecutions.