Unfair impact? Bail in California for the same crime can be $1,000 for some, $50,000 for others
By Kelly Puente
Orange County Register
November 14, 2017
Arrested for being drunk in public?
You could get to bail out of jail in Los Angeles County for $250, but get arrested for the same crime in Ventura County and it could cost you $2,500.
In Orange County, a person arrested for misdemeanor prostitution could need $1,000 to get from behind bars, but in neighboring San Bernardino County the price tag is $50,000 under the posted bail schedule.
California law mandates that judges in each of the state’s 58 counties craft their own bail schedules, which act as guideposts for jurists. As a result, bail amounts for the same crimes can vary widely across California.
Someone who can’t afford to post bail, or just doesn’t want to pay the big bill, could sit in jail longer just because of the county they’re in.
That disparity is one reason why proponents of bail reform are pushing for a complete overhaul, arguing that bail tied to money creates a two-tiered system of justice – the poor remain locked up while the rich buy their way out.
And, they say, it doesn’t adequately protect public safety.
Lawmakers seek change
“To us, it exemplifies why there is a need for reform in the criminal justice system,” said John Bauters, director of government relations for Californians for Safety and Justice, one of the groups leading the effort.
On the forefront is Senate Bill 10, which would largely eliminate the cash-bail system by having judges instead rely on an assessment of a defendant’s flight risk and threat to public safety. If bail is deemed necessary, it would be set based on ability to pay.
That bill is backed by Gov. Jerry Brown and Chief Justice Tani Cantil-Sakauye.
Opponents, including bail agents and law enforcement officials, say the changes would cost taxpayers, because of the added expense of the risk assessments, and hurt small businesses: bail-bond firms. Supporters say there would be fewer inmates, and so taxpayers would actually pay less.
Though the issue is hotly contested, people on both sides agree that the counties’ disparity does unfairly impact poor families.
Maggie Kreins, vice president of the California Bail Agents Association and founder of Maggie’s Bail Bonds in Long Beach, said the bail system is necessary to ensure that people show up to court. But schedules could be more uniform, she said.
“Every county is so far off it’s not funny,” Kreins said. “Unfortunately, we’ve never been able to ascertain what the judges are looking at. It’s almost as if they’re picking a charge and throwing darts at a dartboard.”
Per California law, judges in each county meet annually to review and approve the local bail schedule. There are no statewide standards, but judges in some cases will consider current public-safety issues and law enforcement efforts.
Why bails vary
In Orange County, where the district attorney has vowed to fight sex trafficking, bail for felony human trafficking is $250,000.
San Bernardino County, meanwhile, doesn’t break out a specific bail amount for felony human trafficking. But the bail for misdemeanor prostitution is one of the highest in the state at $50,000.
Robert Fleshman, a spokesman for San Bernardino County Superior Court, said that bail rate was set because prostitution has historically been viewed as a public-safety concern.
Still, judges have the discretion to depart from the bail schedule and can choose to lower or raise the amount, depending on many factors.
San Bernardino County Public Defender Phyllis Morris said it is unlikely that judges are setting such a high bail for people accused of misdemeanor prostitution. Most are released on their own recognizance, she said.
Morris said San Bernardino, like Orange County, also has taken a tougher stance on sex traffickers in recent years and that the bail schedule hasn’t caught up with current views.
“It’s something that should be changed,” she said.
Criminal defense attorney Mark McDonald, who serves clients in Orange, Riverside and San Bernardino counties, said he’s amazed by the disparities. Bail in San Bernardino or Orange County can sometimes be thousands of dollars higher than in Riverside, which typically has some of the lowest bail rates, he said.
“It’s perplexing to me, because we’re all using the same laws,” he said. “A robbery in San Bernardino isn’t any more serious than in Orange County.”
System’s just fine, judge says
Others say the system works as it should.
Riverside Superior Court Judge Helios “Joe” Hernandez, who has chaired the court’s bail committee, said the bail system is individualized to each county, which is how local government should work.
“We’re never going to get around the economic, cultural and social differences among counties, and to push them to be all the same is not fair to the people who want a say on law and order in their communities,” he said. “They want to do their own thing without Big Brother micromanaging them.”
When deciding the bail schedule in Riverside, Hernandez said, judges will consider the severity of the crime and the impact on public safety.
In San Diego, judges on the bail review committee will look at a number of factors when setting the schedule, including input from the various jurisdictions within the county and new laws, like Proposition 47, which reduces penalties for some crimes, said Karen Dalton, a spokeswoman for San Diego County Superior Court.
George Eskin, a former Santa Barbara County Superior Court judge who served on the bench for 10 years, said the process was simpler in his county.
“We would survey the L.A. Superior Court schedule and someone would move to adopt it and that would be it,” said Eskin, who retired in 2013. “It was completely arbitrary.”
Eskin, a longtime advocate of criminal justice reform, was one of a dozen legal experts to serve on a work group this year that was established by the state’s chief justice to examine the bail system.
In a study released last month, the group recommended that the money bail system be replaced by a risk-based assessment and supervision program.
Who’s eligible?
When someone is arrested for a crime and a judge chooses to set a bail amount, the defendant can pay the full amount or pay a bail bond agent a non-refundable 10 percent of the tab. If the person fails to show up for court, the bail agent agrees to cover the full amount.
It is unclear how many people are in a California jail who are eligible for bail.
But about two-thirds of the state’s jail population – nearly 48,000 on any given day – are awaiting trial or sentencing, according to the Board of State and Community Corrections’ annual Jail Profile Survey. While many can’t afford to post bail, others are ineligible because of prior convictions and violations.
Kreins, who learned the business from her father and founded Maggie’s Bail more than 30 years ago, said some people are sitting in jail because their families choose not to bail them out.
When her grandson called her recently to bail him out for driving under the influence, Kreins said she took a tough-love approach.
Not bailing him out had nothing to do with money.
“I told him no way,” she said. “He has to learn a lesson.”
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