When you are arrested for a crime in California, you may have the opportunity to be released from custody while your case is pending by posting bail. However, this will change in October 2019 due to a law that was recently signed by Governor Jerry Brown.
When it takes effect, Senate Bill 10 will amend Government Code Section 27771 and add Section 1320.6 to the Penal Code. This will eliminate cash bail and replace it with a risk-based system designed to determine if each person arrested for a crime should be released from custody while the case is pending.
Before this law takes effect, it is important to understand how it will work.
Cash Bail vs Risk Assessment
Under California’s current bail system, an individual who is arrested for a crime may have the opportunity to be released from custody while his or her case is pending by posting monetary bail. The money for bail is considered a promise that you will appear for all of your future court dates.
Judges determine the bail amount based on a bail schedule. It is often very expensive. Rather than paying for bail outright, you may be able to pay a non-refundable percentage of the bail amount to a bail bonds agent, who will post bail for you.
California’s new system will instead determine if an arrested individual should remain in custody based on risk assessment. Counties will establish agencies to evaluate individuals to determine if they are likely to voluntarily show up for court hearings or commit new crimes.
The system is expected to use analytic tools and machine learning that considers the defendant’s:
- Personality type
- Socioeconomic background, and
- Criminal history
Who will be released from custody pending trial?
Individuals who are considered low risk (those determined to be little threat to public safety or to flee) would be released with some non-monetary conditions placed on them. These conditions are not specified under the law and thus are currently unknown.
Medium-risk individuals will face an additional pretrial hearing in front of a judge to determine whether they will be granted or denied release.
High-risk individuals will remain in custody. Those who are accused of committing violent felonies, certain sex crimes or a third DUI within 10 years as well as those who may have broken pretrial release conditions within the last five years will also be held in custody pending the outcome of their case.
It is important to note that prosecutors will have the ability to file “preventive detention” to block a defendant’s release pending trial if they believe no conditions would guarantee public safety or the defendant’s appearance in court.
Why eliminate the cash bail system?
The cash bail system does not rely on risk assessment. This means that an individual with enough money could pay to be released from custody no matter if he or she poses a potential danger to the community. On the other hand, a person with limited finances who does not pose a significant threat to society would likely have to remain in custody.
This new system of pretrial release eliminates money as a factor in being released from custody while awaiting trial. Ending cash bail is a way to eliminate disparities based on wealth and race in the justice system.
Additionally, this law could help reduce the population in overcrowded jail facilities throughout the state.
Will the new bail law be challenged?
There are major concerns about this new law. New Jersey and a few other states have introduced no-cash bail systems to mixed reviews. Many civil rights organizations originally supported the new law, but now oppose it because they claim it will not be fair to those who have limited financial resources.
Currently, those that are opposed to the new law are attempting to have a ballot initiative placed on the June 2019 ballot asking the voters of California to reject this new law and keep in place the current bail release system that has been in operation in California for decades. There are also lawsuits that will be filed that will challenge the constitutionality of this new bail system.
Many scholars believe that it is unconstitutional to keep persons in jail with no way of being released prior to their being convicted of any crime. One argument being raised is that if a person is presumed innocent under our constitution, how can that allow the government to keep him or her in custody without any means to be released from jail? Who will compensate those that are found not guilty or charges are dropped by the District Attorney after they have spent months or even years in custody fighting their criminal charges?
It will be interesting to see whether this new law ever goes into effect in California. Will the many challenges to the new law prove successful? Stay tuned and Wallin & Klarich will keep you updated on all the latest developments.
Contact the Criminal Defense Attorneys at Wallin & Klarich Today
If you or a loved one has been charged with a crime, you should seek the help of an experienced criminal defense attorney immediately. Our skilled and knowledgeable criminal lawyers at Wallin & Klarich have been successfully defending clients in California courts for more than 40 years. Let us help you now.
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Call our office today at (877) 4-NO-JAIL or (877) 466-5245 for a free phone consultation. We will be there when you call.