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Will Groundbreaking California Bail Reform Help or Hinder Defendants’ Likelihood of Pre-Trial Release?

by Betty Nelander

Gov. Jerry Brown hailed a sweeping cash bail elimination law in California as landmark, years-in-the-making legislation to fairly treat “rich and poor alike.” Whether it will keep more people out of jail remains to be seen.

The California Money Bail Reform Act makes California the first state to fully scrap cash bail. It was signed into law August 28 and will take effect on October 1, 2019. It eliminates cash bail at the state court level. The rationale for the reform is based on the argument that whether a suspect is placed in jail shouldn’t depend on his or her ability to pay but on the risk the individual poses and whether the person will show up in court.

In fact, nearly 8 out of 10 individuals remain in detention because they can’t afford to post bail, according to For those who do pay bail, it can be an excessive burden because the amounts defendants are often required to pay “rarely matches their circumstances.”

In practice, the biased cash bail system effectively favors the wealthy who can afford to pay for their freedom over the poor who are penalized. It has pressured “defendants to take plea deals, even if they were innocent of the charges, so they could get out of jail and return to their lives,” notes the

However, the elimination of this “obvious tax on the poor” is causing much hand-wringing because of the risk-based system that will replace it.

That system reflects compromises made to the legislation. Lawmakers worried about dangerous people being released back on the streets, so they gave judges—many of them locally elected— discretion to determine whether a pre-trial suspect is a flight risk or threatens public safety even if the person hasn’t been convicted of anything. These last-minute changes have alarmed reform supporters.

Clearly, the goal was to have fewer people in jail before their trial, but the bail alternative could actually result in more pre-trial detainees languishing behind bars.

Criminal justice reformers and groups such as the ACLU, NAACP, and Human Rights Watch are rightly concerned. Who gets released and who gets put behind bars before trial will depend upon a pre-trial risk assessment tool, an algorithm created by the courts in each jurisdiction, reports

“Algorithms cannot undo the racial bias that exists in the criminal legal system,” Myaisha Hayes, criminal justice and tech organizer for Center for Media Justice, told the Compton Herald. “These and other high tech tools will always disadvantage communities of color and threaten to replace mass incarceration with digital prisons. We join the chorus of civil and human rights organizations in calling on jurisdictions to reconsider their use of pretrial risk assessments and adopt solutions that actually set people free.”

“Suspects will be classified into ‘low risk,’ ‘medium risk’ and ‘high risk’ by Pretrial Assessment Services, which already exists in some California counties but which will be somewhat standardized by the law,” according to

“A person who is deemed as high risk, including those arrested for violent felonies, will not be released,” reports.

Criminal justice advocates such as Vonya Quarles “fear judicial discretion and the data to be used will perpetuate prejudicial outcomes and lead to more people incarcerated before their trials than under the existing system,” reports

The New York Times said Essie Justice Group, a California organization created by women with loved ones in prison, argues “the new law gives too much discretion to prosecutors, who could call for preventive detention for a broad range of crimes.”

“This is incarceration without any due process,” Essie Justice said in a statement.

“In most nonviolent misdemeanor cases, defendants would be released within 12 hours,” reports. “In other instances, defendants will be scored on how likely they are to show up for their court date, the seriousness of their crime, and the likelihood of recidivism.”

“Some people could be released on other conditions, including monitoring by GPS or regular check-ins with an officer.” 



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