More than 200,000 bail bonds are posted in California each year, generating $308 million in non-refundable premium fees from accused persons, their families, and friends who post bail for them. Being detained in custody pretrial, even for a short period of time, can threaten an individual’s employment, housing, financial stability, and family.
With roughly 90% of all court cases litigated in state court justice systems, judicial branch leadership in every state is taking the need for rethinking and reform seriously.
The Investigation of the Ferguson Police Department report in 2015 highlighted, among other critical issues, the need for judiciaries nationwide to address implicit bias, fairness, and funding (as it related to fines, fees, and bail to support critical services to the public).
Chronic underfunding combined with unstable funding formulas for courts created a pay-to-play model for access to justice. Penalties, fines, fees, and forfeitures are the architecture for this model, but they have also barred many from the halls of justice, and forced many to remain in jail to await their day in court. This model disproportionately impacts ethnically diverse communities and the poor.
The revered mantra for judiciaries around our country is “justice for all.” Justice is mentioned first in our nation’s constitution and last in our pledge of allegiance, and we as judicial officers and public servants swear an oath to protect both our state and the federal constitutions.
The Executive Branch has the power of the sword, the Legislative Branch has the power of the purse, and as former United States Supreme Court Justice Sandra Day O’Connor said, the Judicial Branch has only the power of the quill.
As a co-equal branch of government in our constitutional democracy, the judicial branch relies on public trust and confidence to enable us to adjudicate disputes, to interpret laws, and to protect and preserve civil and constitutional rights.
In California, our outreach to our communities has shown that the primary factor for the public’s trust and confidence is “procedural fairness. Also, to our public, “justice is local” — and fairness and equal access in our county courthouses are paramount.
In 2016, I established a Pretrial Detention Reform Work Group to study and research California’s bail system from every angle and its impact on all those involved with the current model. I am optimistic that when I receive their highly awaited report next week there will be many substantive strategies for our judiciary to discuss in consultation with our sister branches of government and the concerned public.
Approximately two-thirds of California’s jail population—nearly 48,000 people—are unsentenced and awaiting court proceedings. This figure includes those who are public safety risks and ineligible for release, but it also includes a large number of people who are eligible for release but have not, or cannot, afford to post bail.
Studies show that Black and Latino accused are more likely to be detained pretrial than White, and they are less likely to successfully post money bail as a condition of their release.
Nationwide, the number of pretrial inmates in jail has grown at a much faster pace than sentenced inmates, despite historically low crime rates. Moreover, states have increased their reliance on money bail bonds.
However, during 2016, lawmakers in forty-four states and Washington D.C. enacted 118 new laws relating to pretrial detention. Kentucky, New Jersey, New Mexico, and Washington D.C. have implemented major reforms to their pretrial systems.
The Judicial Council of California, which I chair, administers a Recidivism Reduction Fund Court Grant Program that supports pretrial programs in eleven counties—Alameda, El Dorado, Fresno, Imperial, Lassen, Monterey, San Luis Obispo, Shasta, Solano, Sonoma, and Yuba. All programs are using pre-trial risk assessment tools that provide judges with additional information about the risk of releasing a non-violent accused before trial.
Apart from the financial and other costs to an accused individual, there are also the related costs of incarceration for local jurisdictions. For example, in Santa Clara County, it can cost up to $200 a day to jail an accused person pretrial. Alternative pretrial models, such as out-of-custody supervision or electronic monitoring cost an estimated $15 a day and $3 a day, respectively.
As we strive to ensure court appearances and protect the public, we must be prudent with local and state resources, and, above all, we must treat everyone fairly.
Bail has its origins in the Magna Carta, and the right to bail in most states is protected by constitution or statute. However, originally, money was not a consideration for unsecured bonds, or “sufficient sureties,” and profit or indemnification in the posting of the bond was not initially contemplated.
Nevertheless, our nation grew and expanded west, and as it did, secured bonds, the pledge of assets or the deposit of money became a principal condition of release. During the last century, public safety, the risk of flight, and certain categories of offenses led to a “preventive detention” pretrial model.
United States v. Salerno (1987) stated, “[i]n our society, liberty is the norm, and detention prior to trial or without trial is the carefully limited exception.” In limited circumstances, preventive detention did not violate either the Due Process Clause or the Excessive Bail Clause.
We must ensure, as much as we can, that any system of bail we put faith in achieves its goals, is fair, and is subject to periodic assessment.
Even sureties cannot guarantee attendance, but the current bail system has morphed over time into a practice with questionable results and impacts that warrant an objective analysis.
Our system of government with its checks and balances is designed to encourage positive working relationships among the sister branches of government that brings about needed change for the public. In California, I have served as a convener, connector, and collaborator with Governor Brown and legislative leadership to address issues of statewide concern, like bail reform.
And, through the Commission I appointed to prepare a report and make recommendations on the Future of California’s Court System, I have been able to provide my colleagues in the Executive and Legislative Branches with recommendations for action. It was an appropriate public/government relationship that worked to the benefit of all Californians. And I look forward to working with Governor Brown, Senator Hertzberg, Assemblymember Bonta, and others during this next legislative session on bail reform efforts.
My peers on the Conference of Chief Justices and leaders from the Conference of State Court Administrators formed a National Task Force on Fines, Fees and Bail Practices to address the ongoing impact that legal financial obligations have on economically disadvantaged communities. The justice system should not inadvertently penalize the poor.
Ongoing self-assessment and reengineering are positive activities for government entities as stewards of public funds.
The current money bail system relies on the financial resources of the accused regardless of whether or not the person poses a significant risk to the victim and to public safety.
As Chief Justice, it is my administrative responsibility to engage in civil discourse, to research, to listen, and to speak on issues affecting equal access to justice for all. In the words of Dr. Martin Luther King, Jr., as he sat in a Birmingham jail, “Injustice anywhere is a threat to justice everywhere. We are caught in a network of inescapable mutuality. We are tied in a single garment of destiny. Whatever affects one directly, affects all indirectly.”