Ending California’s bail about money, not justice
"If the Judicial Council truly wanted to lower the bail schedules, it could ask the courts to do it tomorrow, at no cost"
Photo: Flickr/Roy Luck
‘The Judicial Council sought to blame the California bail industry for having some defendants in custody only because they cannot afford bail’
By TOPO PADILLA
The California Judicial Council’s recent 108-page report recommending the elimination of the California bail industry and adopting a pretrial risk assessment program, is one of the most underhanded and dishonest documents I have witnessed in my 34 years of working with the courts and bail agents.
First, the California Judicial Council refused to hear testimony from California bail agents, the industry they are seeking to eliminate. To check the box, the Judicial Council brought in an out-of-state employee of the surety insurance companies to speak on behalf of California bail agents. That insurance employee lives and works in Colorado, not California. Further, the Judicial Council could not justify denying California’s bail agents their testimony because there is no defense for them intentionally excluding stakeholders’ input.
Next the Judicial Council sought to blame the California bail industry for having some defendants in custody only because they cannot afford bail. The simple fact is that the courts, not bail agents, have the responsibility for imposing their bail cost schedules.
Let us be clear, only the courts have the power to impose and increase or lower bail schedules under California law. The bail industry does not have anything to do with bail cost schedules or determining the financial condition of defendants. In fact, bail agents more often than not finance the cost of bail bond premiums.
In 2014, the California bail industry unsuccessfully sought to lower the bail amounts by sponsoring Assembly Bill 1118 (Hagman). The Judicial Council opposed the bill and now tries to blame the bail industry for current bail cost schedules harming poor defendants.
If the Judicial Council truly wanted to lower the bail schedules, it could ask the courts to do it tomorrow, at no cost. The Judicial Council report, it seems, isn’t about helping the poor or making the justice fairer, it is about the money, and quite frankly their desire to get more money.
The Judicial Council recommends eliminating the California bail industry and imposing a county-by-county risk assessment program that requires Adequate Funding and Resources:
California’s courts and local justice system partners must be fully funded to effectively implement a system of pretrial release and detention decision-making and supervision, including having resources for new judges and court staff, infrastructure for local justice partners, assessment tools, and training. Adequate funding must be available to ensure effective, accurate, and complete systemic data collection and exchange between justice system partners.
Significant initial investment of resources and ongoing funding are essential. If this system relies on anticipated savings to cover new and continuing costs, it is likely to fail before the public gains any benefits. Without adequate and consistent funding, the system cannot be effective, which may result in a rise in the number of accused who fail to appear in court and an increased risk to public safety. [emphasis added]
What the California Judicial Council presented, in essence, was a wish list, lacking many key details. It transfers costs to taxpayers, adding to the state’s already significant burdens imposed on its citizens and businesses.
Nowhere in Judicial Council’s recommendations do they indicate how or with what public purse the state will pay the recommended $2 billion to $3.5 billion pretrial release program’s costs.
As long as it is spending billions in public funds that don’t exist, the Judicial Council may as well add their high-cost, dream-worthy no-bail program to wistful proposals for universal health care, stopping Donald Trump from tweeting and wishing for world peace. Each sounds nice, but fail to identify who will pay for such monumental tasks.
Perhaps most obvious and serious for public safety, the Judicial Council entirely fails to name any responsible parties to capture those defendants who ultimately fail to show up to court. They also ignore how this pretrial program — proposing to ensure that dangerous criminals remain in jail while those with lesser offenses are released on their own recognizance without bond — has failed in nearly every other jurisdiction and state.
While blinded with dollar signs of new money the courts can control and spend, the Judicial Council recommendations are little more than a dangerous social experiment and easily could be one of the worst criminal justice mistakes ever made in California’s history.
Topo Padilla is the president of the Golden State Bail Agents Association