A robust public debate is taking place about shaking up the criminal justice bail system and, more specifically, eliminating money bail. The District Attorneys for Brooklyn and Manhattan announced in January that they would no longer be seeking money bail in misdemeanor cases. In June, Senator Bernie Sanders introduced “The No Money Bail Act,” which would formally end the use of secured bonds in the federal criminal court system and provide incentives for states to reform their own bail systems. The California Money Bail Reform Act (SB10, AB 42), which will establish a complicated, costly pretrial risk assessment system and allow courts to impose only non-monetary conditions of pretrial release, passed the Legislature on August 21st, was signed by Governor Brown on August 28th and takes effect in October 2019.

One of the most promising attempts at reform came from our local appellate district. In January, the First District Court of Appeal decided In re Humphrey (now under review by the California Supreme Court), which declared California’s bail system unconstitutional and required courts to engage in an individualized analysis of an accused’s ability to pay and allowed for imposition of a commensurate amount of bail only if no less restrictive alternative (such as GPS monitoring) would ensure defendant’s appearance at future court dates.¹

Bail reform is long overdue. As a criminal defense attorney the majority of whose clients are indigent, I have witnessed firsthand the unfairness of the current bail system, in which poor defendants are held in custody pending trial solely because they cannot afford bail. However, I am not convinced that reform requires the elimination of cash bail entirely.

Under the current system, the amount of bail is set according to a uniform bail schedule and the bail amount can be posted in cash or through a bail bondsman. The bail bondsman posts the entire amount of the bail, say $50,000, in exchange for a non-refundable 10% fee, which here would be $5,000. If the defendant failed to show up for future court appearances, the bail bondsman would forfeit the bail.

When Humphrey was still good law, I watched one of our Marin Superior Court judges carefully consider defendants’ individual circumstances in setting bail. In one case, a defendant with no criminal history who worked full time at a local retailer earning only about $15/hour, asked to be released on his own recognizance. The judge set bail at $10,000, reasoning that the defendant would be able to come up with $1,000 to pay the 10% fee to the bail bonds company, which would put up the full bail amount. In this circumstance, the bail bondsman is allowed to bet that the defendant will return to court, in which case it would get its $10,000 back and get to keep the $1,000 fee taken from defendant. But shouldn’t the defendant be allowed to bet on himself?

The purpose of bail is to ensure a defendant’s appearance at future court appearances. There is no reason why a reasonable bail amount cannot be used where appropriate to incentivize defendants to return to court. However, in order to restore the appropriate incentives, bail should be set in an amount the defendant can actually afford. If the court determines that the defendant can afford $1,000 that should be the bail amount if he posts his own bail in cash. The defendant would get his money back after returning to court every time through the conclusion of his case. If he borrows from friends and family to raise the money, all the better – then he has a support system of people who are also invested in making sure he gets to court.

The gross inequities caused by our current bail system do not stem solely from the use of financial incentives. Reasonable bail, tailored to what a defendant can actually afford out of his or her own pocket, should be considered as another alternative to the current system in appropriate circumstances.