When a person is arrested in California for a felony, and some misdemeanors, he or she will be detained—most often at the county jail—until an arraignment before a judge. At the arraignment, the judge will set bail, or in some cases release the defendant on their own recognizance. Depending on the seriousness of the crime, the bail amount can run into the tens of thousands or hundreds of thousands, sometimes even millions, of dollars. If the defendant has the resources to pay the bail, which will usually be 10% of the bail amount paid to a bail bondsman. Current law mandates the bail system and its due for reform.

Consider that the way it is set up now: those who have limited resources often find themselves unable to post bail. Even though they are still innocent of the crime for which they are charged, they will remain incarcerated because they don’t have the funds to pay a bail bondsman. It is not as uncommon as you might think to see a person’s freedom taken away for months, even years, only to be acquitted of the crime for which they were accused. On the other hand, a person with enough resources who is charged with a crime, even one that is very serious (even a person charged with murder may be entitled to bail), will be able to secure his or her release from jail. This is an inherently unfair system.

In 2016, the Chief Justice of California established a Pretrial Detention Reform Workgroup to analyze pretrial detention in California and recommend policy reform. The panel, which consisted of Superior Court Judges from a variety of California counties just published its findings and recommendations. They came up with ten recommendations for pretrial reform:

  • Implement a risk-based system based on data analysis, which is fair and impartial, that allows judges to make decisions on a person’s pre-trial release from custody based on that person’s threat to public safety.
  • In cases where public safety may be threatened by the person’s release, give the courts the authority to detain the person in preventative detention.
  • Utilize pretrial services in every county to assist the courts in making release or detention decisions and to supervise and monitor those who are released pretrial.
  • Implement a pretrial risk assessment tool, based on historical data, for judges to use in making a decision whether to release a defendant pretrial.
  • Gather information about a defendant prior to arraignment in order to assist the judge in releasing defendants at the earliest possible time following their arrest.
  • Give victims an opportunity to provide input regarding the pretrial release of the defendant.
  • Apply the recommended pretrial procedures to those arrested on a “no bail” warrant issued for those defendants who have violated the terms of their probation, post-release supervision or other community supervision conditions.
  • Secure adequate funding to implement the pretrial release reform.
  • Provide on-going training to judges, court staff and others in the justice system community regarding the implementation of pretrial release and supervision.
  • Enact statute and develop court rules implementing the reform.

The California Legislature has already seen one bill directed at pretrial detention/bail reform fail. Another bill is currently winding its way through the various committees. These reforms are facing stiff opposition from those who believe it is “soft on crime” and lobbyists (read: the bail bond lobby) who oppose it. There are also concerns about the costs this reform would impose upon the state. Yet, there is little question that the momentum is behind reform, particularly with the issuance of the Pretrial Detention Reform Workgroup’s recommendations.

Criminal defense attorney William Weinberg has been representing the accused in Orange County for almost 25 years. If you wish to speak with him about your criminal matter, he offers a consultation free of charge. You may contact him at (949) 474-8008 or by email at bill@williamweinberg.com.