Ty Anis July 6, 2017

Once someone is arrested and charged with a crime, the first question that the overwhelming majority of individuals will have is “How can I bail out?” This request will often come before a request for an attorney or even before fully understanding the charges against them. The bail industry is a big business and the expense of posting bond is the first big expense facing the accused and their families. This system has been in place for years but is now under closer examination, particularly in California.

California is starting to consider radical changes to the current bail system. Assembly Bill 42 (AB 42) was proposed by Assemblyman Rob Bonta and would end the use of money bail schedules. Senator Bob Hertzberg of the California Senate has proposed an identical bill (Senate Bill 10). The Assembly failed to advance the bill past committee in early June but the Senate did so on May 31.

A bail schedule essentially sets up a formula where a judge will set bail “per schedule” under predetermined amounts that will depend on the charged crime and allegations, as well as the defendant’s prior criminal history. For example, the presumptive bail in California in 2017 for felony 2nd degree robbery (PC 211) is $50,000; the bail for carjacking (PC 215) is $100,000; and the bail for attempted murder (PC 664/187) would be $1,000,000. Allegations such as inflicting great bodily injury, prior prison sentences, and prior strike convictions can add additional amounts to the presumptive bail. Bail bondsman typically charge around 10% of the bail to post bond for a defendant. Obviously, this means that it is often financially impossible for some defendants to bail out. Unfortunately, this can often result in defendants pleading guilty simply to get out of custody even if they are wrongfully accused.

Recently, many states across the country have started to examine how the current bail system disproportionately affects the poor. In effect, the current bail system allows individuals with resources the ability to fight the charges against them while out of custody, which is obviously far easier and less stressful. The proposal under AB 42 is to eliminate the current money bail system and replace it with pretrial service agencies set up by each county to determine whether defendants should be released and under what conditions they can be released.

The primary opposition to this bill has come from groups stating that this proposal will cost the state hundreds of millions of dollars per year. A lobby of bail bondsmen claims the proposal will cost the state more than $2 billion annually. It appears unlikely that true bail reform will pass in California in 2017, but the fact that these proposals are gaining momentum point to reform in the near future. In the meantime, it is strongly advised that defendants and their families consult with an experienced attorney to learn not only what can be done about bail, but also to plan for the best strategies moving forward.