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Is It Time To Scrap California's Cash Bail System?

Mar 7, 2017

California is in the middle of reversing decades of ‘tough on crime’ policies. Realignment and propositions 47 and 57 have been instituted to lighten the load in county jails and state prisons.

Now lawmakers are examining a system that sometimes keeps people in jail before they have even been convicted. Criminal justice reformers say California’s use of cash bail has created an income-based justice system.

So here is how this works.

Let’s say you are arrested and charged with a crime and find yourself in the Fresno County Jail.

Now, you can get out but the state wants some money to make sure you come back to court.

That’s when you need someone like bail bondsman Barry Pearlstein who owns Lucky Bail Bonds in Fresno.

He waits in his quite simple office a stone’s throw from the county jail.

“It’s not close to anything people see on TV or ‘Dog The Bounty Hunter’ or otherwise. That’s not what it is all about.” Pearlstein says.

There is a lengthy list of felonies and misdemeanors in California and each one has a cash bail amount tied to it.

The rates vary from county-to-county but overall California routinely has some of the highest in the country, averaging around $50,000.

"It's not close to anything people see on TV or 'Dog The Bounty Hunter'," Bondsman Barry Pearlstein

Pay a bondsman like Barry 10% of that amount and he will guarantee the court that you won’t skip town.

If you do, he will probably show up on your door step complete with a black vest and a badge marking him as an officer of the court and bring you back to court.

If he can’t bring you to court in six months he owes the court for the entirety of your bond. Either way he keeps the 10% fee.

In exchange, you can be free to continue your life while your case plays out.

Pearlstein strongly defends the cash bail system as a necessary, effective, and constitutionally protected part of the criminal justice system.

“What we do is important to the pre-trial release system. Whether you like bail or not. Whether you believe people are entitled to that or not. The constitution provides for it and there is a reason for that,” Pearlstein says.

Pearlstein says the bail system works because people have ‘skin in the game’ and are much more likely to return to court. He claims that 99% of people show up, although the state does not keep an official tally of the number of people who skip bail.

But some call this system a de facto ‘debtor’s prison’ that keeps people who have not been convicted of a crime imprisoned because they are too poor to pay.

Assemblymember Rob Bonta

One of the authors of a bill to replace the current bail system with one more lenient is Assemblemember Rob Bonta of Oakland.

Bonta says he was shocked by the inequities of California’s bail system after hearing stories about poor people arrested but not convicted who lost their jobs, kids or their car because they couldn’t bail out…

“So there are massive human impacts that are tied to a wealth-based system. We shouldn’t have a wealth based criminal justice system. We shouldn’t have better outcomes if you have more money in your pocket,” Bonta argues.

Bonta’s bill, and a companion in the state senate, wouldn’t completely do away with cash bail.

They would greatly reduce its use and allow more people to be released without bail if they are deemed to not be a flight risk or a threat to the public.  

In all 15 states and Washington D.C. have adopted a bail system that allows judges to set individual bail amounts based perceived risk.

Currently in California, it’s set by a table and largely blind to individual circumstance.

The state has been sued by a group called Equal Justice Under The Law, which opposes the cash bail system. They because they believe it violates the constitution’s promise of equal protection by favoring the wealthy.

The group’s CEO Phil Telfeyan says the women they are representing were never even convicted of any crime but still suffered the consequences of arrest.

“Both of our clients in litigation in San Francisco had their charges dismissed. One of them lost her job while she was in jail pending trial before her charges were dismissed. And the other one was unable to take care of her grandmother,” Telfeyan says.

"We shouldn't have a wealth based criminal justice system. We shouldn't have better outcomes if you have more money in your pocket," Assemblyman Rob Bonta

Telfeyan says other places have largely replaced cash bail with a robust pretrial services agency that reminds people when and where they need to go to court. He argues that while tax payers must pay for this model, it is cheaper than keeping someone in jail because they can’t afford bail.

However, in D.C. the pretrial services agency says only about 88% of people released without bail return for their court appearance.

But it’s not just people like Telfeyan who say it is time for change.

Even strong law and order advocates like Barry Pearlstein and Fresno County Sheriff Margaret Mims concede the bail rates have gotten out of control.

But rather than get rid of it, Mims says fix it.

“The methodology of how it happens is interesting. I think they should take into consideration poverty levels in the counties. There should be some kind of formula to figure out what a bail schedule should be,” Mims says.

And to be clear, cash bail is big business in California.

Pearlstein says he guarantees as much as 15-million dollars a year in bonds. Bigger companies, he said, do work in the billions.

Lowering the bail schedules would eat into revenue…recall they keep the 10% fee regardless of the outcome of the case…but it probably wouldn’t put them out of business.

Which is exactly what some activists say they want to do.

The first hearings on the bills are expected in April.