California Scraps Cash Bail to ‘Treat Rich and Poor Fairly’

California will become the first state to end money bail under a new law that will take effect in October, 2019. Under the measure, courts will use algorithms to decide who needs to be kept in custody ahead of trial—but critics, including the ACLU, say the new system may perpetuate discrimination. 

California will become the first state to abolish money bail for suspects awaiting trial, under a sweeping reform bill signed by Gov. Jerry Brown , reports NPR.

The measure, due to take effect in October 2019, means defendants will no longer be required to put up money or borrow it from a bail bond agent in order to secure release ahead of their trials. Instead, courts will use algorithms to decide who to keep in custody and who to release pending disposition of the case.

Gov. Brown, who has been pressing for bail reform for nearly four decades, said the California Money Bail Reform Act will ensure “that rich and poor alike are treated fairly.”

But many critics, including the American Civil Liberties Union (ACLU), said they were disappointed that the measure didn’t go far enough—and could further worsen racial bias and economic inequities in the courts.

“They took our rallying cry of ending money bail and used it against us to further threaten and criminalize and jail our loved ones,” Raj Jayadev, co-founder of advocacy organization Silicon Valley De-Bug, and a former supporter of the bill,  told the Sacramento Bee.

Under the Act, in most nonviolent misdemeanor cases, defendants would be released within 12 hours. Other defendants will be scored on how likely they are to show up for their court date, the seriousness of the crime, and the likelihood of recidivism.

The ACLU pulled its support, arguing that last-minute changes give judges too much discretion.

On the other side of the argument, the American Bail Coalition, which represents bail providers,  likely will challenge the law in court

Bail reform has gotten increased traction across the U.S.

Washington, D.C., already has a cashless bail system. Some states, including New Jersey, have passed laws that reduce their reliance on money bail. Other states are considering making similar changes.

At a meeting last spring, policies of prosecutors elected on progressive platforms around the U.S. were praised for showing promise to reduce the nation’s incarceration totals,

Jeremy Travis of the Laura and John Arnold Foundation called “remarkable” and “stunning” a set of new policies announced by newly installed Philadelphia District Attorney Larry Krasner.

Krasner told his staff  in March to offer shorter prison sentences in plea deals, decline to file marijuana possession and many prostitution charges, and explain case-by-case why taxpayers should pay thousands of dollars per year to incarcerate people.

Travis suggested that Krasner’s practices reflected some of the findings of a Misdemeanor Justice Project at John Jay College of Criminal Justice, which he formerly headed. The project “seeks to understand the criminal justice response to lower-level offenses, from arrest to disposition.”

See also Cherise Fanno Burdeen in TCR, “Is a Common Sense Approrach to Bail Reform Finally gaining Traction?

At the federal level however, bail reform still appears to be stalled.

Senator Bernie Sanders (I-VT) introduced legislation earlier this year that would end money bail on the federal level and incentivize states to do the same.The No Money Bail Act would prohibit the use of cash bail in federal criminal cases, provide grants to states that implement alternate pretrial practices, and withhold grant funding from states that continue to utilize cash bail.

“It has always been clear that we have separate criminal justice systems in this country for the poor and for the rich,” reads Sanders’s summary of the bill. “A wealthy person charged with a serious crime may get an ankle monitor and told not to leave the country; a poor person charged with a misdemeanor may sit in a jail cell.”

“And this disproportionately affects minorities—fifty percent of all pretrial detainees are Black or Latinx.”

The No Money Bail Act is not the first push within Congress to tackle pretrial practices. Previous efforts, such as the measures introduced by Representative Ted Lieu (D-CA) in 2016 and 2017 and the Pretrial Integrity and Safety Act sponsored by Senators Kamala Harris (D-CA) and Rand Paul (R-KY) last year, have stalled, making it unlikely that Sanders’s bill will receive the necessary traction to become law.

Even if Congress fails to act, bail reform is slowly gaining ground in cities and states around the U.S., partly through the work of advocates like Robin Steinberg.

Last November, Steinberg launched The Bail Project, a five-year, $52 million plan to bail out 160,000 people in more than 40 locations, starting with New York City.