A ballot initiative on whether to eliminate cash bail in California will be decided by voters this November.
California’s current bail system allows many detained criminals to post bond and be released from jail before trial. The November referendum would replace cash bail with a risk assessment to determine if a detained suspect should be granted pretrial release.
A “yes” vote on the referendum would uphold Senate Bill 10, which was passed in 2018 and did away with cash bail, though its effects are on hold, pending the November election.
Elk Grove police spokesperson Jason Jimenez said the effect of SB10 is currently unknown to the city of Elk Grove and that it is up to the voters.
“We will continue to do what we do regardless of whether there’s bail or not,” he said. “And we’ll continue to work hard on the streets to ensure that our community is safe.”
John Bauters, the budget advocacy director of Californians for Safety and Justice, argued that bail schedules in California are currently disproportionately high, making the system difficult for most people to afford.
“The average bond in California, according to the most recent studies, is about $50,000,” he said. “That is five times the national average for what a bail schedule is.”
Bauters, who has worked on SB 10, said one of the goals of the law is to give the courts the tools needed to discern if a suspect is a threat to public safety.
Detained suspects would then be categorized as low, medium, or high risk. Those deemed as low risk would be released from jail, while high risk suspects would remain in jail with a chance to argue their case before a judge.
Topo Padilla has worked in the bail industry for over three decades in the Sacramento area and is the co-partner at Greg Padilla Bail Bonds. He is also the president of the Golden State Bail Agents Association and serves on the board of the Professional Bail Agents of the United States.
Padilla agrees that bail schedules in California are too high and he has been working to try to lower them throughout the state.
“Since 2009, my bail association that I represent has been trying to work with the legislature, judges and the law enforcement to lower the bail schedules in California,” he said. “Nobody, and I mean nobody - judges, DAs, cops, even defense attorneys - would work with us and help us try and lower the bail schedules in California. And rather than doing the easy thing, which would be lower the bail schedules, they threw the baby out with the bathwater and said, ‘Why don’t we just eliminate the industry and then we won’t need to fix it.’”
Padilla noted that Washington, D.C. currently has a zero bail system in place that works similarly to SB 10. The budget for their pretrial release system is $71 million for a population of 650,000 people, he said.
“If you take those numbers and you put in our 39 million people that live in California and you do an algebra program, the budget will be over $2.5 billion, not million, billion dollars to run a pretrial release program in the state of California,” Padilla said. “You think we need that right now? Nope. All we need to do is really lower the bail schedules.”
Jeff Clayton, attorney and executive director of the American Bail Coalition, is also against the elimination of cash bail. The American Bail Coalition organized a political action committee against SB 10 called the Californians Against the Reckless Bail Scheme.
Clayton has worked on the bail reform issue since the early 1990s and said he does not think SB 10 is the right way to solve California’s bail problem.
“The right to bail is the only way to challenge the government’s thirst for incarceration, period. There is no other mechanism,” he said. “We can say that we trust the government to make the right decisions to let people out, but I don’t. I trust the community and I trust everybody else.”
Clayton also warns against preventive detention. “Preventive detention” is the detention of defendants with the purpose of preventing them from committing a crime.
“There are two things you need to understand, to understand bail reform. One, is preventative detention. That’s the evil here,” Clayton said. “So, the government’s thirst for incarceration under a system of preventative detention will increase. And it makes sense, right? Because if judges had the option of release or detention, they would go for detention.”
Clayton said that bail bondsmen are trying to get people out of jail while the state wants to keep them in. The current bail system is a way to ensure that people will appear to their court date.
Bauters said that cash bail is a wealth-based system, which has also greatly impacted minority populations. He said the bail system allows detained suspects to be released based on their “pocketbook,” which does nothing to promote public safety.
“There’s a disproportionate number of people of color who are negatively impacted by the cash bail system,” Bauters said. “This is down a long lineage of things that I could go on forever about how American institutions have historically institutionalized racism and biases against people of color through the way we’ve implemented things.”
However, Clayton disagrees. He thinks preventative detention and getting rid of cash bail will become a “civil rights atrocity.”
“I agree that the system is biased against those who don’t have resources and has been shown to be biased in many respects against those who are nonwhite populations,” he said. “But I don’t think Senate Bill 10 is going to remedy it. If anything, I think it will make it worse.”
Amid the COVID-19 pandemic, the Judicial Council of California enacted emergency court rules in April in an effort to keep as many people away from courthouses as possible. According to Bauters, rule number four dropped the bail schedule to $0 on several low-level offenses.
“I think which most people don’t realize is that for over a week now, everybody in California, with a set of exceptions that the court created for domestic violence cases and other things that we agree with, the court has been working with a zero cash bail system right now,” he said. “You haven’t seen a huge spike in crime. We haven’t had the news full of stories of those things.”
Padilla, however, countered this claim and explained that it was not as simple as it may seem. Padilla said law enforcement has only been enforcing certain crimes because of the effects of emergency court rules.
“They know that A, most likely they won’t be able to book the person to the jail and B, if they do catch them it’s just going to be a catch and release right on the scene,” he said. “Number two, as importantly, they are not booking. So if you have a warrant for your arrest, they’re not booking most warrants. If warrants aren’t being arrested, it’s very, very easy to say, look, crimes down.”
SB 10 would effectively remove the need for the bail bonds industry, putting long running businesses like Padilla’s in danger. While he agrees that bail reform is severely needed in the state, Padilla thinks the use of the risk assessment is ridding people of an essential right.
“Of course, I’m speaking on me because this is what I do for a living and I’ve done this for 38 years,” Padilla said. “Certainly, I’m talking to you from that angle, but more importantly, I’m talking to you as a taxpayer and somebody who understands the criminal justice system and seeing that getting rid of a person’s constitutional right to bail out of jail is absolutely wrong.”
Editor’s note: Robyn Dobson and Brooke Uhlenhop are journalism students at California State University, Sacramento. They are being taught this spring by Phillip Reese, a state reporter at the Sacramento Bee and an assistant professor at CSUS. This is the third story submitted by his students as part of a partnership between the Citizen and Reese’s class. For more information about the CSUS journalism program, visit facebook.com/sacstatejournalism.