Counties Prepare for the End of Cash Bail

The end of California’s cash bail system will mean big changes for California counties. They have 13 months to prepare.

The California Money Bail Reform Act, which makes California the first state to eliminate cash bail, doesn’t take effect until Oct. 1, 2019. At that point, evaluation of a defendant’s risk — not his or her ability to pay —  will determine whether they can be released pending trial.

As usual, much of the new responsibility will fall on counties.

“Much of the real business of making post-bail California work properly must be done by boards of supervisors, and if they haven’t yet begun to understand their new responsibilities and rejigger their budgets accordingly, they had better catch up,” the Los Angeles Times Editorial Board warns. “They should define the pretrial services that their probation departments will perform, including non-law-enforcement work such as text reminders about court dates to increase the appearance rate. They should be exacting about required training and protocols for pretrial services staffs. They should ensure that pretrial services personnel identify at the earliest point in the process the non-criminal factors that may have contributed to the defendant’s arrest — mental health and public health problems, for example — so that they can divert from the criminal process those who should be treated by other parts of the county service system, or provide needed service to those who remain in the justice system.”

At the top of counties’ priorities will be the selection of the new risk assessment tools to be used in evaluating defendants. That process could prove more difficult than it sounds. There is fierce debate about the fairness and efficacy of the various risk assessment systems out there.

On that front, Santa Clara County could be a model. The county has been using a comprehensive risk assessment system known as VPRAI for the past six years and says it has proven extremely successful. The tool relies on 16 factors, including age at arrest, criminal history, and marriage status, as well as more specific criteria such as the charges in a pending case. You can read more about Santa Clara’s system here

Senate Bill 10 passed the State Senate 26-12 and the General Assembly by 42-31. It was signed into law by Gov. Jerry Brown on Aug. 28.

Proponents like co-author Robert Herzberg (D-Van Nuys) have argued that the current cash system is unfair and skewed heavily toward wealthier defendants.

San Mateo County District Attorney Steve Wagstaffe agrees.

"I think it's a good evolution," he said

Wagstaffe noted that one murder suspect in his county who is also accused of conspiring to murder the father of her two children was released after friends and family helped her post about $62 million in property bonds. Meanwhile, defendants accused of much smaller offenses languish in jail cells because they can’t put up a few hundred dollars.

But the law had some surprising detractors. The American Civil Liberties Union, which has long sought the elimination of the cash bail system, ultimately pulled its support for the bill. Human Rights Watch was also opposed it, warning it would perpetuate the problem of mass incarceration and bias in sentencing.

You can read Human Rights Watch’s letter to the governor here