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Bail out: Should we nix the state's cash bail system?

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Jeni M. was booked into San Luis Obispo County Jail on May 11, 2009. She voluntarily turned herself in on a burglary charge, according to court records.

Her bail was set at $50,000, but she was under the impression that she would remain at the facility until her next court hearing. But within a day or two of her booking, she was solicited, illegally, by a representative from a local bail bond company who offered to get her out. That same bail bond agent obtained the phone number of Jeni's mother, and called her at least twice, promising to bail Jeni out of jail for $5,000, according to disciplinary records filed by the California Department of Insurance.

PHOTO BY JAYSON MELLOM, ILLUSTRATION BY ALEX ZUNIGA
  • Photo By Jayson Mellom, Illustration By Alex Zuniga

Jeni's mother turned the offer down. She simply didn't have the money.

Unscrupulous bondsmen, high bail amounts, the inability to get out of jail because you don't have the money: These are all ills that a vocal group of criminal justice reform advocates in California lay at the feet of the state's cash bail system. That system, they believe, is unfair, prejudiced, and potentially harmful to public safety. A little less than a decade after Jeni's ordeal, they are advocating to drastically change that system, ending cash bail statewide.

But not everyone's sold on it. Some law enforcement officials argue that taking away the financial incentive will put more criminals back on the streets, criminals who would be more willing to skip out on bail and possibly commit other crimes. Representatives of the bail industry agree and say scrapping the system would also burden police and taxpayers with the cost of tracking down those who don't show up to court.

That same back-and-forth is happening in SLO County. Activists, law enforcement officials, local politicians, and bail agents are taking sides on the issue, making their arguments as a bill to end the state's cash bail system works its way though the legislative process.

'Terribly unjust'

One of the more vocal groups in favor of bail reform in SLO County is the local chapter of Bend the Arc, a progressive Jewish organization that advocates for a number of social justice issues, including criminal justice reform.

Barry Price, a member of the group's SLO chapter, said he and other members have been pushing the issue of bail reform both locally and at the state level, making the argument to anyone who will listen that the cash bail system is outdated, ineffective, and discriminatory.

"It's one of the greatest contributors to mass incarceration and inequality in the country," he said. "It's also one of the most unjust and unequal elements of our criminal justice system."

One of the major arguments Price and others like him make for abolishing the cash bail system is that it unfairly favors the wealthy over the poor. Under the current system, someone held on bail can pay the full amount and get out of jail or pay a bail agent to post a bond for the full amount, and pay them a non-refundable fee of anywhere from 5 to 10 percent of the total bail amount.

According to a May 2017 report by UCLA's Luskin School of Public Affairs, the median bail amount in California is about $50,000, five times higher than the rest of the country.

"If you go to a bail bond company, that's still $5,000," Price said. "So if you don't have $5,000 laying around, what happens? You're stuck sitting in jail, or your family has to scramble to come up with that money by selling a car or borrowing from friends or going into debt."

According to the UCLA report, an estimated 90 percent of individuals detained pretrial in the U.S. remain in jail because they cannot afford their bail.

"While defendants await trial in jail custody, they are unable to attend to their obligations, such as working, going to school, paying rent, or caring for family members," the report states.

The report also says that the current bail system may perpetuate racial disparities in the state's criminal justice system, particularly among African American and Latino populations, who it says are disproportionately represented within the state's pretrial jail population.

For reform advocates like Price, the current system not only keeps the poor and people of color unfairly behind bars, it allows those with the ability to pay to get out, even if their crimes are worse or more violent. Price pointed to the case of Tiffany Li, a Hillsborough, Calif., woman accused of orchestrating the murder of her ex-boyfriend in 2016. According to media reports, Li, who comes from a family with an estimated net worth between $100 million and $150 million, was able to get out of jail after posting a record-setting $35 million bail in April 2017.

Contrast Li's case with that of Sandra Bland, a 28-year-old black woman arrested after a traffic stop who couldn't afford to pay the $515 bail bond amount. She spent three days in jail before committing suicide. The problems with the cash bail system couldn't be clearer, advocates argue.

"It doesn't enhance public safety, because if you have the money you can get out regardless of your crime, while people arrested for very minor offenses can languish behind bars just because they don't have money," Price said.

Skepticism

While Price and others in the bail reform movement believe that getting rid of the cash bail system would help address issues of inequality within the state's criminal justice system, others aren't so sure that such a radical change is necessary. That includes SLO County's top prosecutor, District Attorney Dan Dow.

"In terms of fairness and equity, I think there is a lot of room for improvement in the system," Dow said. "But the view that there should be no cash bail at all is, I think, a bit premature."

Dow said that while other states have been further behind the curve in reforming their bail systems to be more fair, he believed that California already had several laws and policies in place to prevent many nonviolent and low-level offenders from languishing in jails.

One of those is a practice known as "cite and release." Under California law, persons arrested for most misdemeanor crimes can, in lieu of being taken to jail, receive a citation and be released with a promise to appear in court on the charge. Cite and release doesn't apply to felony crimes; some individuals on felony probation; or individuals arrested for theft, burglary, or assault and battery who have three or more warrants for failure to appear in court on previous charges. Both the SLO County Sheriff's Office, as well as law enforcement agencies throughout California, utilize cite and release, Dow said.

A QUESTION OF SAFTEY SLO County District Attorney Dan Dow said there is always room to improve the justice system, but he has concerns that scrapping the state's current bail system could endanger public safety. - FILE PHOTO BY HENRY BRUINGTON
  • File Photo By Henry Bruington
  • A QUESTION OF SAFTEY SLO County District Attorney Dan Dow said there is always room to improve the justice system, but he has concerns that scrapping the state's current bail system could endanger public safety.

"The people you describe as low-level and nonviolent offenders are being cited out. They're not really sitting in our county jails," he said. "The ones that are have had numerous failures to appear in court."

Dow said he also believed that using a cash bail system incentivizes individuals accused of a crime not to commit further crimes while they are out of jail awaiting trial and encourages them to appear in court. In felony cases, he said, prosecutors can add another two years to their sentence if they commit another felony while out on bail.

"It does put more skin in the game for that offender," he said. "Because they could lose that money."

Greg Sullivan, owner of local bail bond company ABC Bonding, shared a similar sentiment about completely getting rid of the current system.

"It's going to allow people to run free with nothing hanging over their heads," said Sullivan, who's worked in the industry for 32 years. "It just doesn't make sense to me."

Sullivan also argued that bail agents help relieve the burden of already overtaxed law enforcement agencies by finding defendants who skip their bail. If someone out on bond fails to appear, a bail bond company like Sullivan's has about six months to find them before they forfeit the entire amount of the bond to the court, creating an incentive for them to find and return the defendant.

Without the bail bond industry, it would be completely up to local law enforcement agencies to track down and arrest defendants who fail to appear in court, meaning a drain on time, manpower, and resources, all at the expense of taxpayers, according to Sullivan.

"We are sort of like an insurance policy for the taxpayers," Sullivan said.

While he was against totally dismantling cash bail in California, Sullivan said that there was definitely room for improvement using less radical fixes.

"I do feel that by setting bails lower, it would alleviate a lot of the problems we see," he said. "I think that would be a really good first step."

Likewise, Dow said there are potential reforms that should be looked at to address problems in the system. Dow pointed to 10 recommendations made by a working group of 12 California judges commissioned by the state's chief justice to study the issue in 2017. Among those, Dow supports recommendations to expand the use of risk-based preventive detention programs, implementing pre-trial services for defendants in every California County, and integrating the perspectives and voices of the defendant's alleged victims into the pre-trial process.

Whatever reforms occur, Dow said that safety needs to remain a top priority.

"Public safety should be the No. 1 consideration when determining bail," he said. "That's really what trumps it all for me."

SB 10

The divide between those for and against ending the cash bail system in California is becoming even more apparent in the support and opposition surrounding a proposed bill currently making its way through the state's legislative process.

Senate Bill 10 (SB 10), also known as the California Money Bail Reform Act, would enact major changes to the state's current bail system. If passed, it would largely eliminate the use of money bail and make courts rely more on a defendant's risk and other factors when determining whether to detain them prior to their trial.

The most current version of the bill requires each county to create a pre-trial services agency, as well as a "risk assessment" system to evaluate defendants and determine if they pose a threat to the community and their likelihood of showing up to court. A risk assessment report would be provided to a judge, who would then use it and other information to determine whether a defendant should be released. A defendant could be released with or without specific conditions, but if those conditions can't "reasonably" ensure the person will return to court, a monetary bail amount could be set. However, that bail amount would be based on their ability to pay rather than a fixed bail schedule, which the current system utilizes.

The bill was introduced in December 2016 by state Sen. Robert Hertzberg (D-Van Nuys) and passed the Senate on a 26-11 vote in May 2017. The bill is currently under consideration by the state Assembly's appropriations committee.

Proponents of the bill, which include the California ACLU, the California Public Defenders Association, and Bend the Arc all believe it will create a more just bail system, promote community safety, and reportedly save millions of taxpayer dollars spent to incarcerate Californians who can't afford to pay bail.

"This legislation reforms bail so it treats people of all backgrounds fairly and equally, whether they are rich or poor," Hertzberg said shortly after the bill passed the Senate.

But a number of organizations have raised concerns about the bill. Those include the California Peace Officers Association, which said that courts already have a system to release a defendant on their own recognizance or reduce their bail. The California District Attorney's Association also opposed the bill, stating in an April 2017 letter that while "thoughtful" improvements may be necessary, the proposed legislation moved "too far, too fast."

Dow agreed with that assessment and said he worried that the provisions in the current version of SB 10 wouldn't be enough to keep the public safe from defendants who might be released and commit further crimes.

"To me, there will inevitably be more crimes being committed," he said. "Not everyone charged or convicted of a crime is always going to commit another crime, but we know statistically that individuals convicted of certain offenses are more likely to reoffend, ... so I think there will be more victimization."

Local Bend the Arc member Price pushed back against the characterization that the bill would make communities less safe.

"They want to say you'll have to lock up your wives and daughters because there's going to be all these heinous villains roaming our streets," he said. "But that's not the case. The current system doesn't enhance public safety because, if you have the money, you can get out of jail regardless of your crime or flight risk."

While its passage is still up in the air, the SLO County Sheriff's Office is participating in a pre-trial services working group with the DA's Office, County Probation, the SLO County Public Defender's Office, and other local agencies to prepare for the bill's possible passage.

"The Sheriff's Office is supportive of alternative tools to incarcerating individuals," the office said in a written response to questions from New Times. "However, [we must] have the community's safety at the forefront when assessing such cases."

An election issue

The argument over bail reform has trickled down into local politics. The two candidates running for the 35th District state Assembly seat in November have taken up opposing sides on the issue.

A MATTER OF JUSTICE 35th District Assembly candidate Bill Ostrander says he supports repealing and replacing the state's cash bail system, arguing that monetary bail is unfair to the poor and people of color. - FILE PHOTO COUTRESY OF OSTRANDER CAMPAIGN
  • File Photo Coutresy Of Ostrander Campaign
  • A MATTER OF JUSTICE 35th District Assembly candidate Bill Ostrander says he supports repealing and replacing the state's cash bail system, arguing that monetary bail is unfair to the poor and people of color.

Challenger Bill Ostrander, a Democrat, said he was in favor of leaving the cash bail system behind, and supports SB 10. Like Price, Ostrander, believes that the status quo creates a two-tiered system of justice, favoring the wealthy with little regard for the type of crime they've committed.

"People's rights are being trampled because they chose to be a store clerk instead of a hedge fund manager," Ostrander said. "This is something we need to have a frank discussion about."

In addition to creating a more equitable criminal justice system, Ostrander believes that enacting SB 10 or similar bail reform legislation could save taxpayer funds. According to UCLA's report, pre-trial detention under the status quo bail system costs the state more than $28 billion annually. A non-cash bail system could cut that cost down to anywhere between $18.9 billion and $4.8 billion, depending on the incarceration rate and specific types of reforms, the report stated.

"Right now, taxpayer resources are being used to incarcerate people who don't need to be or don't deserve to be in jail," Ostrander said. "Reforming our bail system could very well release millions of dollars we could use for education or other areas."

But Republican incumbent Jordan Cunningham, now running for a second term as the 35th District's assemblyman, has come out against ending the state's monetary bail system, and has signaled that he will likely not support SB 10 as currently proposed. Cunningham's office declined an interview with New Times on the subject, referring reporters to a letter to the editor Cunningham submitted on the bail reform issue that New Times published in April.

In that letter, Cunningham, a former prosecutor, argued that without the incentive created by monetary bail, more felons would fail to appear in court and remain at large. Like District Attorney Dow, Cunningham indicated that this would put public safety and crime victims at risk.

"This proposal, in my view, would ultimately make communities less safe," Cunningham wrote.

The Assembly member also wrote that the proposed legislation to scrap the current bail system would impose, "considerable costs" on local governments who would have to establish pre-trial agencies, calling into question just how much taxpayers would save should it pass.

Last year, Cunningham voted against AB 42, a companion bill to SB 10 that failed to pass the Assembly. In his letter to New Times, Cunningham indicated that he'd likely vote against SB 10 as well, unless the proposal was "substantially amended".

Ostrander questioned whether Cunningham's opposition to the bill was truly out of a concern for public safety, noting that he'd taken campaign donations from bail bond companies. According to campaign finance filings, Cunningham received a total of $3,000 from two bail bond companies in 2017 and another $1,225 from local bail bond business owner Sullivan in 2016. In both cases, those donations only accounted for a small fraction of Cunningham's total donations.

"Mr. Cunningham seems to be more focused on punishment than improving our community," Ostrander said. "He seems to be siding with an industry that is profiting off other people's misfortunes."

While bail reform and SB 10 are unlikely to be the central issue of the 35th District race, the outcome could impact the fate of SB 10. Price indicated that every vote would be needed to get the measure passed in the assembly.

"We are still a few votes short," he said. "One of those votes in Mr. Cunningham's."

Whomever wins the seat in November will likely get the chance to cast a vote, if and when the bill comes up for a vote.

A larger conversation

The push for bail reform is just the latest in what appears to be a growing conversation, both in California and across the United States, about reforming the criminal justice system.

From efforts to decriminalize drug offenses, minimize the use of solitary confinement, and pushback against the use and funding of for-profit prisons, Price said that the wider public is increasingly acknowledging some of the harmful and biased aspects of the criminal justice system. He said more people are looking to engage and participate in ways to address them.

'NO' VOTE 35th District State Assemblyman Jordan Cunningham (R-Templeton) indicated that he would not vote for a proposed bill that would end California's money bail system, taking the opposing side of Ostrander, his challenger in the November election. - FILE PHOTO BY HENRY BRUINGTON
  • File Photo By Henry Bruington
  • 'NO' VOTE 35th District State Assemblyman Jordan Cunningham (R-Templeton) indicated that he would not vote for a proposed bill that would end California's money bail system, taking the opposing side of Ostrander, his challenger in the November election.

"There's been a growing awareness of the negative impacts of mass incarceration," he said. "More people are becoming aware that it's terribly unfair and unjust and that it should be fixed."

But others, including many in law enforcement, warn that rushing to fix those problems without consideration for their impact on public safety can lead to unforeseen negative consequences. They cite the passage of Proposition 57 in 2016 as an example. The law, passed by voters, promised to allow early release for prisoners accused of a "nonviolent" crime. But loopholes in the bill allowed for early release, under certain circumstances, for prisoners accused of assault, child trafficking, rape of an unconscious person, and other serious crimes. Both Cunningham and Dow opposed the proposition prior to its passage.

"I think there will always be opportunities to make reforms and do better, but the devil is in the details," Dow said.

The key, he insisted was having just as much consideration for the victims of crime as for those accused when trying seeking fixes to create a better system of justice.

"It's important—because of our U.S. Constitution—to always protect a defendant's rights, but if we don't protect a victim's rights with equally as much fervor, then I think we don't really have a justice system," Dow said. Δ

Staff Writer Chris McGuinness can be reached at cmcguinness@newtimesslo.com.

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