The Assault on Safety Continues: Eliminating Bail is the Latest Target

By Marc Debbaudt

And now they come after bail.

Those opposed to incarceration as the primary tool which ensures public safety have been on a roll the last few years.  First came “realignment,” which shifted convicted felons from state prison to local jails. Then came “split sentences,” which allowed felons to serve a portion of their prison sentence in local custody followed by release to the community. Most recently, Proposition 47 reduced a slew of property and theft crimes to misdemeanors, thereby removing incarceration as a likely option for individuals convicted of those crimes. And of course we have the new laws that seek to prevent the deportation of criminal immigrants.

As detailed in an Associated Press article by Paul Elias, the latest target of the anti-incarceration crowd is the cash bail system. Lawsuits recently filed in Northern California challenge the cash bail system and seek its elimination. The claim is that cash bail is unfair, as those accused of felonies but lacking financial means are unfairly kept in custody. A person who fails to appear in court, whether released on bail or not, faces additional criminal penalties for their failure to appear.  However, experience has taught that the threat of additional punishment alone is not sufficient incentive to return to court for many.

In California, the Penal Code mandates that county judges set a bail schedule for felony offenses. The schedule dictates the bail amount for those arrested and booked into jail prior to their arraignment.  At the first court appearance, which occurs within 72 hours of arrest, the court may change the bail amount required.  Factors considered in setting bail include protection of the public, the seriousness of the offense charged, the previous criminal record of the defendant and the probability of their appearing at trial or at a hearing. Further, by presenting new facts, within five days, the defendant may have a review of the bail set at arraignment.

However, not everyone is required to post bail. The rich and the poor can be released on the discretion of the arresting agency or the judge without posting bond. Some criminals are cited and released at the time of the arrest or after booking without bail being set or posted. Some are released At arraignment on their own recognizance [OR] which is a mere promise to return made to the Judge when the Judge believes the person is a good risk.

Bail is usually met by posting cash, or by using a bail bond service, which posts the bail amount but charges a fee that is a percentage of the bail amount.  Those who cannot post the bail amount remain in custody while waiting for their case to be concluded on an expedited timeframe.

While those challenging the cash bail system attack its constitutionality, cash bail is specifically contemplated by the Constitution.  The 8th Amendment states that “excessive bail ought not to be required.” The  United States Supreme Court has decided that this phrase means that bail cannot be higher “than is reasonably calculated” to ensure the defendant’s appearance at trial. In other words, the amount of bail is determined to make sure that the person who is released shows up to court. The test is one of reasonableness. The Constitution and the Supreme Court both recognize the simple fact that a person who stands to lose financial assets is more likely to return to court than one released without a bail requirement. This time worn procedure has demonstrated that cash incentivizes a person’s return to court. Who is more likely to return to court, those with their hard earned money on the line, or those who have no risk if they abscond?

The inescapable reality of life, that some have more means than others, and that wealth has advantages over poverty, has never risen to the point where it constitutes a violation of our Constitution. Is wealth unfair? There is no mandate in the Constitution that all citizens must have equal financial status, or must enjoy the same opportunities that can be obtained through their financial abilities.  Removing a long standing time-tested element of the justice system that ensures public safety and the appearance of defendants for a misguided notion of “fairness” is foolhardy.  Is arrest and release fair to the next victim of the defendant?

The recent increase in crime following the passage of Prop 47 and various other criminal justice “reforms” is scary enough.  It would be a horrible mistake if our Legislature decides that we should let loose defendants before trial, and remove an effective way to ensure their return to court to face charges, for a misguided notion that the bail system is unfair. It is time for the social engineers to stop making our streets unsafe with one bad experiment with your safety after another.

Marc Debbaudt is President of the Association of Los Angeles Deputy District Attorneys. The view and opinions expressed in this article are those of the author and do not necessarily reflect the official policy or position of ADDA, which represents nearly 1,000 Los Angeles Deputy District Attorneys