This November, voters will have the chance to weigh in on whether to abolish cash bail. Some say this is a needed reform that will help reduce racial and economic discrimination in California’s criminal justice system. Others are wary that alternatives to cash bail won’t ease the issues of bias but rather put criminals back on the street. 

Before Gov. Jerry Brown left office, he signed into law Senate Bill 10, which was to rid the state of the cash bail system by Oct. 1, 2019. However, a campaign funded by the bail bond industry successfully placed a referendum on the 2020 statewide ballot. This halted SB 10 from going into effect until the vote this November. 

Cash bail is a system that seeks to guarantee a defendant will return for trial or court hearings. If a defendant cannot afford bail, a bail bond company can pay on a defendant’s behalf for a percentage of the fee. If the defendant fails to appear, he or she forfeits the payment to the bail bond company. The alternative is using a risk-based system that relies a series of assessments on whether someone is at risk for not showing up to court proceedings. 

As the state waits for a decision on SB 10, some cities are already implementing changes on the bail system ahead of the 2020 election. San Francisco’s newly elected district attorney, Chesa Boudin, announced his office will no longer ask for cash bail as a condition for a defendants’ pretrial release.  

San Mateo County District Attorney Steve Wagstaffe said he’s been against cash bail for a while and is waiting for the results of the election in November. 

“It’s an unfair system and it should come to an end,” he said. 

Advocates say defendants who are low-income, often minorities, will accept plea bargains or plead no contest, regardless of their guilt or innocence, out of fear they could be convicted and spend even more time in custody.

In California, just 1 to 3 percent of cases go to trial, the rest get resolved, dismissed or end in a plea bargain, according to Wagstaffe. 

“If someone is innocent, I want them to go to trial,” Wagstaffe said. “... It is a problem in the system. The defendant can feel the pressure of the danger of what they could face.” 

On Thursday, San Mateo County started its pretrial pilot project. After receiving funding from the Judicial Council of California, the project is expanding the use of risk assessment tools to determine whether someone will show up for court. 

This will allow for pretrial assessments for anyone booked into and retained in custody within eight to 12 hours of booking for any offender not charged with a violent or serious crime. While this does not eliminate the option of cash bail, it gives another alternative for judges to use at their discretion. 

Defense attorneys say low-income people are at a disadvantage because they are not able to afford bail to wait on a trial. 

“Why do people plead when they feel they have a strong defense? It’s due to the bail system in our state and our county and the coerciveness of it,” defense attorney in San Mateo County Alex Bernstein said. 

Bernstein said he has learned over his 15 years of working as a defense attorney that people want to get out of custody as soon as possible. This can sometimes mean defendants will settle on a plea deal rather than wait for further court proceedings to end the uncertainty of what could happen at trial. 

“These defendants do not want to have to gamble with their lives just to have a chance to exercise their basic constitutional right, which is their right to trial,” he said. “... so that happens every day in California and in the country.” 

Like Wagstaffe, Bernstein is anxious for the results of the election. 

Meanwhile, representatives from the bail bond industry say getting rid of cash bail will not solve issues of discrimination in the criminal justice system.

“Bail agents play a role in making sure people show up for court,” bail bond agent Robert Brown said. Brown is a director of the California Bail Agents Association representing an area that includes San Mateo County. “… This whole idea that only the rich can afford bail is not true.

“Cash bail is not perfect, but it is the best solution,” he said. “We are the ones that hold people accountable to show up.” 

Brown thinks rather than rely on risk assessment tools, which he claims are prone to error, judges should set bails at a more affordable rate. 

“If this action passes, it will put victims at risk,” he said. “It’s all about emotions, and this Legislature is catering to criminals.” 

If the referendum fails and SB 10 is enacted, Brown said the bail bond industry will end in California.

“If you are a bail bondsman this could put you out of business,” Wagstaffe said. “We will have to see what the electorate thinks, but I do feel it is too discriminatory and I am very much behind the idea of, let’s end cash bail.” 

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