What is Cash Bail?
When a person is arrested, cash bail is the amount of money arrestees must pay in order to leave custody before their trial. Bail is used as collateral to incentivize arrestees to attend their trial, and this amount of money is assigned by a judge. When assigning bail, judges take into account the severity of the alleged crime, the risk of the defendant fleeing, and the potential danger the defendant poses. Despite monetary bail’s longevity in the American criminal justice system, there is a recent movement to end cash bail, as some claim that it leads to inequity. States like Kentucky, New Mexico, and New Jersey passed reforms to their cash bail system, but California’s Money Bail Reform Act was the first to propose completely eliminating monetary bail. While the policy ultimately failed to pass a referendum, other states like New York have adopted similar policies.
What Would CA Senate Bill 10 do?
Under the California Money Bail Reform Act, or Senate Bill 10, cash bail does not determine pretrial release. Rather, release decisions are determined by orders issued by judges. Judges base these release decisions on their reasoning of the arrestee’s public safety threat and their likelihood of attending their trial. To assist in these judgements, the policy establishes Pretrial Assessment Services in each court system, which provide the judge a recommendation for release based on predictive algorithms. While this recommendation is shared with a judge, they are not restricted by this suggestion and ultimately have final discretion in issuing a release order. SB 10 did not pass a 2020 referendum, and efforts to pass a scaled down version of the bill in the state legislature this year have failed as well. However, in 2021, the California Supreme Court ruled that setting bail at an amount a person cannot pay is unconstitutional.
Arguments for SB 10
Proponents of SB 10 assert the change in policy decriminalizes poverty as the cash bail system meant those who could not afford bail were imprisoned without due process. Following this logic, cash bail unequally burdens impoverished arrestees in a way it does not for wealthier arrestees. According to a study analyzing Bureau of Justice statistics by the Prison Policy Initiative, those in jail (arrestees awaiting trial) had a median income of $15,000. Additionally, cash bail means that large numbers of arrestees are incarcerated before their trial, which incurs a cost that falls on taxpayers. In a survey conducted by the Vera Institute of Justice in 2015, approximately 53% of the jail population in the state of California consisted of individuals incarcerated before their trial. Additionally, according to a brief from the Pretrial Justice Institute, nationally taxpayers spend $38 million per day to incarcerate individuals who are awaiting trial.
Furthermore, because cash bail means release is dependent on monetary value and not risk assessments, it cannot not take into account the potential danger that an arrestee poses to society. There is little societal value for imprisoning individuals who are not likely to pose a public safety threat and individuals who do present a public safety threat may be released because they can afford bail. Proponents point to research suggesting that the majority of those held pretrial were not charged with a serious crime following their trial. For example, a survey of Connecticut prisons by the Office of Policy Management found that only approximately ⅓ of the arrestees faced incarceration post-trial. Additionally, a study from the Prison Policy Institute found that 75% of arrestees held in jails are legally innocent.
Arguments Against S.B. 10
One argument against SB 10 is that cash bail is a necessary screening measure that prevents dangerous arrestees from committing further crimes as they await their trials. Opponents point out that those who are imprisoned likely committed a crime, and a monetary barrier based on a judge’s discretion is likely to prevent further danger to society. Additionally, opponents argue that cash bail disincentivizes crime, as the threat of jail time before a trial could mean people are less likely to offend.
Additionally, opponents also had concerns about the equity of pretrial release assessments, as there is evidence that these algorithms show racial bias. For example, a 2016 study done by ProPublica analyzed the effectiveness of a commonly used criminal assessment tool called Correctional Offender Management Profiling for Alternative Sanctions (COMPAS) by comparing the program’s predictions of arrestees’ recidivism and actual criminal records in a Florida county. The study found that COMPAS incorrectly predicted black defendants would reoffend at a rate of 44.9%, and only a rate of 23.5% for white defendants. Criminal justice experts theorize that because algorithms rely on criminal records within a system that often overpolices communities of color, as well as markers of poverty, the results of many algorithms are subject to some of the same inequities as cash bail.
