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With very few exceptions, anyone who is arrested is entitled to be released with some sort of bail. The purpose of bail is to assure that the accused will appear in court and to protect the community from a potentially dangerous person. While I have always understood how posting bail assures that people come to court, I have never really understood how simply posting a money bond protects the community. For instance, if a person has been arrested for repeated drunk driving, putting up money for bail does not do anything to address the drinking issue that may be present or preclude them from drinking and driving.

In California, every county sets what is known as a bail schedule. This is an amount of bail that the court has arbitrarily set based upon the crime being charged. The schedule doesn’t take into consideration the strength of the case against the individual, nor much of anything else. If you are accused of crime X, bail is set at Y.

Some counties, like Placer County, have imposed “conditions of release” is certain cases, such as the repeat drinking driver offender. They require that the individual do self-help (AA meetings) or other similar requirements, as a condition of the release.

What has occurred over the years is that the court has continued to raise the “bail schedule” amounts until they are exorbitantly high, thereby preventing many people from being able to get out of custody while they fight their case. As a Sacramento County criminal defense lawyer, I have represented many people who have had bail set at over a million dollars even though they had no criminal record and the allegations were highly questionable.

There is no questions that a person who is in custody is at a disadvantage in fighting their criminal case. They can’t remain employed, it is hard to work with your attorney when you can’t easily see them and there are numerous limitations on their ability to review evidence. As important, going to a jury trial while in custody is also a huge disadvantage. The optics of being brought in and out of the courtroom in custody and having a deputy looming over them during the entire trial, sends a strong message to the jury that they are in fact guilty. While it is possible to overcome these obstacles, it is just one more thing that has to be dealt with in a system that is already stacked against the accused. Further, it makes an in-custody individual much more likely to accept a poor deal just to get out of custody.

For all of these reasons and more, there are numerous law suits sprouting up around the country attacking the bail bond system. There are allegations that it is a denial of equal protection and due process that a person with a low income or limited resources is forced to remain in custody while someone with financial means can post bail and get out of custody. I agree. But the attack is misplaced. The problem is not the bail bond industry. The problem is and continues to be the fact that “schedule bail” is too high and does not take into consideration the many factors that I mention above. The problems have been the fact that the volume of cases has precluded the court from having an individualized assessment of the person before the court in determining whether they should be released, and upon what type of conditions.

On January 25, 2018, the decision of In re Humphry was issued. ( A state appeals court in San Francisco held that the common practice of setting cash amounts so high that a suspect can’t afford them is justified only for those who are too dangerous to be released before trial.

“A defendant may not be imprisoned solely due to poverty,” said the First District Court of Appeal in San Francisco in a ruling that ordered a new bail hearing for a robbery suspect held on $350,000 bail, which he couldn’t afford to pay.

“Legislation is desperately needed,” the court said, to address “the enduring unwillingness of our society, including the courts … to correct a deformity in our criminal justice system.”

This ruling is now requiring judges across the state to change their common practice of setting bail in fixed amounts determined solely by the crimes charged.

It is the trial judge’s “responsibility to ensure that a defendant not be held in custody solely because he or she lacks financial resources,” Presiding Justice J. Anthony Kline said in the 3-0 ruling. The Court found that the constitutional duty cannot be met by relying on a fixed bail schedule that effectively results in pretrial detention orders.

Legislation is pending in Sacramento to overhaul the system and require judges to assess defendants individually and use supervised release and electronic monitoring instead of monetary bail in more cases. A federal judge in Oakland, in a separate case, has cleared the way for a trial on the constitutionality of the bail system.

Already, throughout the Sacramento area, we are seeing the courts grabble with this ruling. The courts are attempting to do an individualized assessment to set an amount of bail and/or conditions that assure the accused will come to court and to protect the community. The problem is how do you do this. The allegations have so many variables. For example, last year I represented a gentleman, who after years of sobriety, got drunk at a bachelor party for his soon to be son-in-law. He got into a nasty fight where he stabbed a friend of his in the face with a broken beer bottle. Bad incident but unlikely to ever be repeated. The accused had no criminal history and because everyone in the house was drunk, no one really knew why it happened or who started it. He had a good job, strong ties to the community and family support. The “victim” didn’t want him to go to prison. And yet he had to fight the case from “inside” because the family could not afford to hire an attorney and post the bail. While addressing the drinking issue would have been appropriate, there was no reason for a sizable money bail amount. And yet neither the court, nor the district attorney would agree to reducing it below the schedule because “it’s the schedule.”

Now the court has to assess when a client can’t afford bail, what conditions can be fashioned that would protect the community and assure his/her appearance.

A new dilemma arises. While the public defender will be able to assert that their clients are indigent by definition, how does a person who has hired the attorney of their choice make this same claim. It is not uncommon, in my experience, that families have to make the choice of either hiring an attorney or posting bail but are unable to do both.

These are some of the issues that the courts will be addressing over the next months and years. We will keep you posted. If you have any questions, speak with our Sacramento County criminal attorney today.

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