Losing Cash Bail Means Courts Will Decide

Bail Reform Puts Pretrial Detention in Judges' Hands

As my progressive friends cheer the passage of the “end of cash bail” in California, I feel an ominous sense of déjà vu, remembering the reforms passed to humanize mental-health incarceration in the 1960s and the changes made to even out felony sentencing laws in the 1980s. In these cases, liberal good intentions were soon subverted by other interests; the end result became laws that harmed those they were intended to help. Today we have still not provided sufficient mental-health care to meet the need, and we have increased the number inmates and their length of incarceration to such a degree that only the outrageous costs have tempered our lock-up mentality.

In the case of this bail reform, we are, I fear, only headed in the same direction.

This reform’s major promise seems to be the elimination of cash bail and the substitution of somebody’s discretion in its place. I suggest that this is less equitable than an arbitrary but neutral cash bail system, which is not so easily cowed by the public. It is this invitation to subjectivity that will, apparently intentionally, allow the use of “preventive detention” in our state for the first time.

Preventive detention is the concept of denying any release before trial, of punishing the accused without trial or even access to counsel. People whom the judge decides are at risk to flee or are a threat to society (what science is there on these subjects?) will be simply locked up.

But, importantly, this proposal is almost certainly unconstitutional as our Founding Fathers guaranteed the right to reasonable bail in all criminal cases to avoid just such abuses by monarchs and despots.

A better reform would be to create a presumption that arrested people should be released on promise to appear and to create a review process to facilitate the setting of reasonable bail by less “risk adverse” public figures than elected judges.

And with regard to that bail, we should return to the procedure California flirted with before. Any accused should be able to post 10 percent of bail with the court. It is returned upon completion of the case, minus charges to cover the cost of process and any lost bail.

Further reforms should include the removal of the present system wherein judges set a “bail schedule” for the jurisdiction. Bail schedules should be set by officials less subject to the pressure of local prosecutors and law enforcement and with the participation of all parties, including the defense bar and community.

But this discussion of “bail” diverts our attention from the more onerous abuses of the criminal justice system: the huge inequity created when the same “fine” is levied on the rich and the poor. Fines should be assessed with the defendant’s ability to pay in mind. The fine for a wealthy criminal should have at least the same impact on that person as it would have on a poor person. Such a system has existed in some European nations for years. It is resisted here because, one suspects, the lawmakers identify with the rich more than with the poor. Imagine if a $200 speeding ticket for a person of modest income was a $20,000 ticket for a millionaire.

Let me comment on a few suspect arguments made in favor of bail “reform”:

  • (1) Yes, people in custody plead guilty sooner than do people released pre-arraignment. This is almost totally because people who are “caught cold” choose to forgo bail or release and get on with the inevitable sentence they will face, not because they couldn’t make bail.
  • (2) Yes, people in custody fight their cases less. But this is because these people are often there on multiple charges and outstanding warrants. Consequently they have much less negotiating power than folks who face only a new arrest. They bargain to clean up their situation and move on.
  • (3) Is this a big change in California? Under the present system most people are cited, released on their promise, or make bail. It is unlikely that a marginal increase in the number of early releases will substantially change justice.

Glen Mowrer is a retired attorney who served as Santa Barbara County Public Defender for 24 years and created the Legal Project, which represented homeless people and for which he received the Pro Bono Service Award from the California State Bar Association.