Not just in California, but across the county, bail reformis a hot topic. Why? Because the bail systemeffectively consigns many defendants to incarceration before they are found guilty…or innocent. Defendants who are unable to come up with the funds to make bail often remain incarcerated until final judgment, but those with means are able to make bail and secure their release from jail prior to the final adjudication of their case. Not only does this result in the incarceration of many “innocent until proven guilty” individuals, it creates an unfair system where those with money can pay to get out of jail while awaiting disposition while those with limited funds and resources cannot.

California, like many states, is struggling to address the money bail system. The Bail Reform Bill, Senate Bill 10, which was introduced by the California Legislature in December of 2016 was recently approved by Governor Brown and is scheduledto go into effect on October 1, 2019. This new law will effectively eliminate the money bail system. California is the first state in the union to enact such a law.

The new bail system will require judges to decide whether to release someone from jail prior to final judgment (i.e., conviction by trial or pleaor a dismissal) based on a pre-trial risk assessment of the defendant. The risk assessment will be conducted by Pretrial Assessment Services using a “validated risk assessment tool.” The assessment tool will give each defendant a “risk score.” The assessment tool is designed to evaluate the risk of a defendant’s evasion of the charges (for example, fleeing the state or failing to appear) and the defendant’s risk to public safety. The language of the bill creates low, medium, and high risk categories. Once this bill is enacted, a defendant will not be required to post bail. (You might wonder what will happen to all the bail bond companies. It looks like they will go the way of the proverbial buggy-whip maker and, at least in California, will have to find other work.)

The risk categories are defined by the statute. As the categories suggest, a “high risk” individual is one who poses a significant risk that he or she will not appear for future hearings or an individual who is a risk to the community due to a subsequent arrest for another crime while released for the current crime. Those labelled high risk are unlikely to be released and there will be no other mechanism to secure release. Therefore, these defendants, who are “innocent until proven guilty,” will be incarcerated in the interests of justice or public safety.  For this reason, the California Attorneys for Criminal Justice, among other organizations opposed the bill.  A “medium risk” individual is one who is categorized as having a moderate risk of failure to appear or risk to public safety. “Low risk” defendants pose a minimal risk that they will not appear for future hearing or will pose a threat to public safety.

This new bail reform law is something of an earthquake in the criminal justice system. It is likely that other states will soon follow suit.  Many who have advocated for bail reform applaud the new law, but others caution that the it establishes broad categories that gives judges almost unlimited power to grant pretrial release or not, which may result in an increase in the number of individuals held in pretrial detention.

Orange County criminal defense attorney William Weinberg has defended adults and juveniles accused of crimes for 25 years. He is available for a free consultation regarding your matter. You may reach him at his Irvine office at 949-474-9700 or by emailing him at