There is growing concern in California that its bail system is unjust and many in the legal community are calling for reform. The average bail amount in California is five times that of the national median amount. This gross disparity has many in the legal community concerned that the current bail system results in undue monetary punishment and unjust guilty pleas.

The problem with having a bail amount in California that is more than five times the national average is twofold. First, high bail amounts create great pressure for even innocent people to plead guilty just so that they can be released. Secondly, the current bail system forces the poor to be kept in custody even for relatively minor crimes primarily because they cannot afford to post bail.

The bail system was designed primarily to protect against the risk of flight and to ensure that the community is protected. The problem is that the bail system in California doesn’t function that way. Instead, defendants are kept in custody because they cannot afford bail. The end result is that low-income defendants are adversely impacted by the system in comparison to more affluent members of society.

One solution to the problem is to eliminate bail for defendants who are not a danger to the community and who represent a low risk of flight or recidivism. A similar type of system was recently adopted by New York City. Although some counties in California have worked on adopting a system with a similar approach, these attempts are few and far between. What California needs is a more uniform system like that adopted in New York.

While the sociopolitical implications of California’s current bail system are stark, there are also significant Constitutional concerns. Bail that is set out of reach for defendants has serious due process and equal protection implications. Holding innocent-until-proven-guilty defendants in jail because they are too poor to make bond is arguably unconstitutional and the rights of these defendants have too far gone unnoticed.