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September 7, 2018

By eliminating cash bail, California could exacerbate inequities in the justice system

September 7, 2018

California recently became the first state to abolish cash bail for defendants awaiting trial. Under the state’s new law, local courts will decide whether to release defendants based on algorithms, or pretrial risk assessments, created by the courts in each jurisdiction.

In the following conversation, senior policy fellow Jesse Jannetta discusses the pros and cons of bail reform in California. Jannetta explains how bail reform shifts power to local jurisdictions, who must now formulate individual pretrial risk assessments. These tools will determine the prevalence of pretrial detentions across the state and will likely interact with existing racial and socioeconomic disparities in the state’s justice system.

Why did California eliminate cash bail?

Cash bond has well-known pernicious effects. Low-income individuals under arrest may be detained pretrial simply because they can’t afford bail.

And if they can afford bail, it’s often by paying 10 percent of the required amount to a bail bondsman, money that they don’t get back even if their case is dismissed or they are acquitted. This constitutes an unexpected major expense or “income shock” that can cause major damage to their financial health.

From a public safety perspective, the argument against cash bail has two angles: at the low-risk and high-risk end. The low-risk angle argues that there is no value to society in detaining low-risk individuals simply because they can’t afford bail. The high-risk angle argues that, under a cash bail system, dangerous people can evade pretrial detention if they have enough money to pay bail.

Why did so many advocacy organizations come to oppose eliminating cash bail in California?

Under the cash bail system, almost everyone accused of a crime had the ability, at least in theory, to obtain pretrial release. Getting rid of the problematic role of cash bail is important, but many see it as part of a larger project to reduce the use of pretrial detention in general.

Advocates are concerned that the combination of risk assessment–based decisionmaking and the greater discretion granted to local courts to use preventive pretrial detention will lead to increased rates of pretrial detention and continue or worsen racial disparity in those rates.

So it’s not that they opposed eliminating cash bail but that they didn’t see its replacement as the improvement that needed to happen. Some advocates instead prefer to rely on release hearings where prosecutors must make a case regarding the risk of release, and that these hearings be based on the presumption of release, which is not the case under the California legislation. And if pretrial risk assessments are used, advocates want them to be used transparently, and in a way that doesn’t recommend detention or increase racial disparities.

Maryland reduced its reliance on cash bail through reforms that increased consideration of risk and presumption of release before trial. There are some early indications that Maryland’s reforms, for example, have led to an increase in pretrial detention.

How will bail reform affect current disparities in the justice system?

Pretrial risk assessments take a number of factors into consideration to determine how likely a person is to fail to appear in court and/or commit offenses if released pretrial.

They often include factors like criminal history, the nature of the charges, prior failure to appear in court, employment, and drug use.

Many of these factors intersect with ongoing racial disparities in California and across the country. And while these factors can be attributed to individuals’ actions, they can also be attributed to what the justice system itself is doing.

When predicting the likelihood of an arrest, for instance, it’s easy to forget that an arrest is a coproduced outcome. Who gets arrested is related to what an individual does, but it’s also related to policing—where police patrol and who is and who isn’t being watched.

Bail reform could potentially worsen racial disparities in the justice system, but it remains to be seen whether it will do so more or less than the cash bail system did.

We will likely see large variations in outcomes from county to county, since each county might be using a different risk assessment tool, and California is very diverse in terms of local justice system orientation. This situation presents an enormous need for research and evidence on the consequences of risk assessments and local discretion on pretrial detention and the health and safety of local communities.

Signs advertise bail bond companies on August 29, 2018 in Los Angeles, California. Photo by Mario Tama/Getty Images.

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