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May 14, 2019

What is Bail and How Does it Work?

If you’ve been arrested in California, the thought of spending even one night in jail can be daunting. The thought of an extended stay in jail – until and through your trial – can make you feel hopeless. It’s no wonder that your first question may be, “What is bail and how does it work?” It’s a particularly timely question since the bail process in California is being completely revamped.


The Origins of Bail

Before doing a deep dive into California’s bail reformation initiative, it’s helpful to understand the origins of bail. The concept of bail is that a person is arrested on criminal charges will be more likely to show up for their trial if the court holds a substantial amount of the accused’s money. If the person charged doesn’t show up for their court date, then they don’t get their money back.

Introducing cash bail into the criminal justice system led to a thriving commercial bail bond industry. The accused could pay a bail bondsman a percentage of the bail amount and the bail bondsman would post the entire bond amount in order to secure the release of the accused.


Bail Creates a Two-Tiered Justice System

Bail is a major contributing factor to a two-tiered criminal justice system. In California, the median bail amount is $50,000, which is in stark contrast to the $10,000 median across the rest of the U.S. Because an arrestee needs cash to post bond, those with money have an advantage. Poor defendants, who are disproportionately men of color, end up spending time in jail awaiting trial. In the process, they lose their jobs, they lose their housing, and their families suffer. In addition, there exists significant anecdotal evidence that the bail hearing system is abused. An article in USA Today described a San Francisco man whose bail was set at $350,000 after being accused of stealing a bottle of $5 cologne and threatening a neighbor. He spent more than 250 days in jail.

Criminal justice reform advocates note that pretrial detention burdens an already overcrowded jail system and costs taxpayers millions of dollars each year. In California, 59 percent of those arrested are detained, compared to 32 percent in the rest of the U.S. In 2017, more than 50 prosecutors filed a California Supreme Court friend-of-the-court brief in support of a challenge to the constitutionality of the state’s money-based bail system. In a press release issued about the brief, Fair and Just Prosecution Executive Director Miriam Aroni Krinksy noted, “A person’s economic status should not be the deciding factor in whether they sit in jail before trial.”

Mary McCord, a senior litigator with Georgetown Law’s Institute for Constitutional Advocacy and Protection, added, “The Constitution has long stood for the principle that people who would otherwise be eligible for release cannot be incarcerated simply because they are poor.” She went on to note, “Pretrial detention, especially based on a poor person’s inability to buy his or her freedom, results in tremendous personal harm—loss of employment, housing, government assistance, and even their children.”


Governor Brown’s Bold Step

The answer to the question, “What is Bail and How Does it Work?”, changed significantly on August 28, 2018, when then-Governor Jerry Brown signed into law Senate Bill 10. Sponsored by Senator Robert Hertzberg (D-Van Nuys), SB 10 mandates that, beginning October 1, 2019, if you’re arrested and detained, you’ll receive a pretrial risk assessment that will be shared with the court. That assessment will include information about the criminal charges levied against you, your criminal history, and whether or not you’ve missed any court dates in the previous three years. In addition, it will take into account information provided by you, the police, any alleged victim, the prosecutor, and your defense counsel. This is why it is critical that you retain a San Francisco Bay Area criminal defense attorney as soon as possible after your arrest or even prior to your arrest if you are being investigated for a crime. Your attorney can have an impact on whether or not you are released from jail following your arrest. The result of the assessment is that you’ll receive a risk score that assigns you a category of “low risk,” “medium risk,” or “high risk.”

A determination that you’re “low risk” means that you’re likely to appear in court and unlikely to commit a crime between now and then. If you’re determined to be “medium risk,” then the assessment found that there’s a moderate risk that you’ll commit a crime or fail to appear in court. In contrast, a “high risk” determination means that, should you be released, you’ll likely be a risk to public safety because you may commit a crime or that you’re likely to skip out on your court date.


No Bail for Misdemeanors

Under the new law scheduled to take effect on October 1, 2019, most people who are arrested for misdemeanors won’t receive a risk assessment and won’t post bail. Instead, they’ll be required to be released without bail within 12 hours of being booked. However, this won’t apply to certain types of misdemeanors. For example, you won’t be released if you face misdemeanor charges for:

  • incest, sodomy or oral sex perpetrated against those with disabilities;
  • sex with a child under 14;
  • child molestation;
  • intimate partner abuse;
  • intimate partner battery;
  • violating a restraining order and threatening the protected person, their residence, or their workplace; or
  • stalking or harassing another person so that they fear for their or their family’s safety.


No Bail for “Low Risk” Arrestees

If you are arrested and are been deemed “low risk,” then you will be released on your own recognizance prior to your arraignment. The review of your custody status and release will happen within 24 hours of being booked, although that timeframe can be extended for 12 hours. The court will not review that determination and you will not be required to post bail. This will apply to almost everyone who is arrested and considered “low risk,” but it will not apply to those who were arrested on charges of:

  • certain violent felonies;
  • intimate partner battery or abuse;
  • incest, sodomy or oral sex perpetrated against those with disabilities;
  • child molestation or sex with a child under 14;
  • a DUI for the third time in the past decade, a DUI that resulted in an injury, or a DUI with a blood alcohol content of .20 or more;
  • violating a restraining order and threatening the protected person, their residence, or their workplace; or
  • stalking or harassing another person so that they fear for their or their family’s safety.

You will also be held in custody if:

  • you failed to appear in court three times in the previous 12 months;
  • you’ve had an arrest in the previous five years for violating a restraining order;
  • you were already awaiting trial or sentencing at the time of your arrest;
  • you’re on formal probation;
  • you threatened the victim of your alleged crime;
  • within the past five years, you’ve violated a condition of your pretrial release; or
  • you have a serious or violent felony conviction within the previous five years.


No Bail for “Medium Risk” Arrestees

Although this new law pertains to the entire state of California, it defers to local court rules for those arrested and determined to be “medium risk.” The law directs that if the court rules allow for medium risk arrestees to be released on their own recognizance, then they should do so in a way that avoids the burden of bail. For example, a tracking device might be one way to help mitigate flight risk. The law provides leeway for the court to perform pre-arraignment reviews or to assign other court officers to make the decision about whether to have the person remain in custody or to release them. Nevertheless, the law does require that your custody status and release be reviewed within 24 hours of being booked. It should be noted, however, that you will not eligible for release if you’ve been arrested for certain crimes, including:

  • certain violent felonies;
  • violating a restraining order, having been arrested for violating a restraining order in the previous five years, or stalking or harassing another person;
  • incest, sodomy or oral sex perpetrated against those with disabilities;
  • certain types of DUIs, such as the third DUI in ten years, blood alcohol content of 2.0 or above, or if another person was injured;
  • sex with a child under 14 or child molestation; or
  • intimate partner abuse or battery.


In addition, the law says that certain patterns of behavior will make someone ineligible for release, such as:

  • a previous arrest in the past five years for violating a restraining order;
  • you’re awaiting sentencing or trial on other misdemeanor or felony charges;
  • you’ve violated pretrial release conditions in the past five years;
  • a previous conviction in the past five years for a serious or violent felony
  • being on formal probation;
  • threatening a witness or victim of the crime for which you’ve been arrested; or
  • having three or more bench warrants issued within the previous year for failure to appear in court.


What Happens When You’re Released?

Beginning in October 2019, the answer to the question, “What is bail and how does it work?” will be that no cash bail is required. However, if you are released on your own recognizance, you will be required to sign a release agreement. The release agreement outlines the promises you make to the court. These include a promise to appear for your court dates, not to leave California without the court’s permission, and to agree to waive extradition if you’re arrested outside of California. You must also state that you’ll obey the law and any court orders.


The Lack of Bail Doesn’t Mean Lack of Risk

While SB 10 helps to level the criminal justice playing field, its enactment does not mean that your risk following release is lessened. Indeed, the law specifically says that during your arraignment or at any other time, the prosecution can file a motion asking the court to take you into custody until your trial. This is why you need an experienced Bay Area criminal defense attorney by your side every step of the way. You do not want to suddenly find yourself in a position where your freedom is at risk. A San Francisco Bay Area criminal defense lawyer understands the criminal justice system and can negotiate with a prosecutor on your behalf to ensure that you do not spend unnecessary time in jail. Instead, you can continue working, spending time with friends and family, and pursuing pastimes you enjoy.

If you’re facing any type of criminal charge, don’t wait another minute. Contact Silver Law Firm today. They will deliver the best possible outcome for your case.



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