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California has hit a milestone that many in the legal industry have anticipated for decades: it is the first state in the U.S. to abolish the use of cash bail for defendants who are awaiting trial. However, if you were recently arrested for a crime in California, do not expect to be immediately released from incarceration. The new law does not go into effect until October 2019. Until then, you may face traditional bail requirements following an arrest, including the obligation to pay hundreds or thousands of dollars to secure your release.

Following an arrest, it is essential you call a criminal defense lawyer for help. If you or a loved one were arrested for a crime in California, contact Michael McKneely, Criminal Defense Lawyer at (559) 443-7442. You can also reach out online to schedule a free consultation.

Long-Awaited Reform

Senate Bill 10 (SB 10) was signed into law by Governor Jerry Brown on Tuesday, August 28, 2018. The bail reform came after a California appellate court said the state’s cash bail system was unconstitutional. In In Re Humphrey, the First Appellate District Court stated in its opinion that by setting a bail amount that was impossible for the defendant to pay, the court effectively detained the defendant without due process. This was not the first time the California courts noted the issues with cash bail. Chief Justice Tani Cantil-Sakauye told the state legislature in 2016 that they could not continue to ignore the current bail system and that it penalized the poor. Additionally, numerous lawmakers, attorneys, and public interest groups have argued against the use of bail for decades, based on its harsh impact on defendants with limited economic means and minorities.

California’s New Bail Law

Beginning next October, local courts will determine who must remain in police custody when awaiting trial and who can be released. Each local court is now required to utilize a risk-assessment algorithm, which is supposed to objectively decide who should remain jailed. The risk assessment may look at various characteristics of the offense, the defendant’s criminal history, and the defendant’s current situation. Each defendant would be labeled low, medium, or high-risk. Low-risk defendants would be released. For medium-risk defendants, pre-trial services offices would decide whether or not to release them or keep them jailed.

The exception to this risk assessment tool is for non-violent misdemeanor charges. In those cases, defendants are to be released within 12 hours of their arrest. Individual counties can reduce the list of offenses eligible for automatic release.

Lawmakers hope that the use of an algorithm will reduce bias within the system. There is also a great deal of hope that this system will lead to fewer defendants in detention while awaiting trial, though this will not be confirmed until the new law is in place for some time.

limination of Cash Bail Is Not All Good News

Many lawmakers, attorneys, and advocates are happy with the elimination of cash bail. It may allow many individuals to be released from prison and remain with their families and work while awaiting trial. Low-level, non-violent offenders may be eligible for automatic release within 12 hours of their arrest. This could go a long way in mitigating the damage criminal charges cause before a defendant may be found guilty. Many individuals suffer greatly from an arrest or charges, even if those charges are later dropped, or they are acquitted in court.

However, it may not all be good news. The final bill gives a great deal of discretion to local judges in deciding who can be released or who must remain incarcerated. The discretion allows judges to decide that a defendant is a danger to the community and can be held in jail without the possibility of release before trial. This means low or medium-risk defendants, who should be released based on the spirit of the law, may be detained for months or years while awaiting trial. This level of discretion may continue to result in unjust and prejudiced decisions.

Likewise, people who were previously able to afford bail on serious offenses will not be able to post bail under the new law. These folks will be forced to remain in custody despite the presumption of innocence.

Many also argue against the risk assessments themselves could keep many defendants in jail. The concern is so great that the American Civil Liberties Union of California (ACLU) pulled its support for the cash bail elimination bill. The ACLU told NPR that the new law does not have enough safeguards in place to protect against racial injustice. The organization also stated that the new law leans too far toward detention rather than release.

What Does California’s New Bail Law Mean For You?

At t,his point the new bail system has yet to be implemented and it remains to be seen whether it will be changed before it starts. Individual jurisdictions face the difficult task of creating an objective, yet effective risk assessment algorithm, which will enable the court to detain defendants who have a high risk of harming others or fleeing, while releasing defendants who are likely to return to court for their trial and not commit any other offenses before trial. Once the new system is in place by October 2019, it will take time to see how it works, including whether it tends to penalize low-income individuals and minorities.

If your relative has been arrested and is in jail right now, you still must consider the cash bail system. Call Michael McKneely, Criminal Defense Lawyer at (559) 443-7442 right away for help. You can also reach out via our online form to schedule a free and confidential case consultation.