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GREG HARTON: California bail change may spread

by Greg Harton | March 28, 2021 at 1:00 a.m.

It's certainly not a lock that legal reforms in California will make their way eastward, spreading to the rest of the country.

The Golden State is known as a state where new legal ground is plowed and plenty of ideas born of that state's progressivism have, in some form or another, influenced the legal landscape of the nation. Of course, here in conservative Arkansas, it's not hard to find people who will point to an exodus of folks from California for a variety of reasons. It's an easy way to dismiss ideas from the "Left Coast."

But last week, California made news with a change that very well could spread.

The California Supreme Court ruled it's unconstitutional to require criminal defendants to remain behind bars while awaiting trial simply because they cannot afford bail. The Los Angeles Times reported the unanimous decision instructed judges to favor pre-trial release and to consider a person's ability to pay before setting bail.

The practice is unconstitutional on the basis of due process and equal protection under the law, according to the court.

What is bail? If you're arrested on a criminal charge, you're innocent until proven guilty in trial, but the judge wants an assurance you'll show up for all the requisite hearings and for trial. An accused person can post security, most often by paying someone in the commercial bail bonding industry a fee to put up the bail, to go free while awaiting trial. The bonding company gets its bail back when the defendant shows up for trial and keeps the fee.

In California now, according to the state's Supreme Court, judges may keep criminal defendants locked up only when "clear and convincing" evidence shows there is no other way to protect the public and ensure the defendants' return for court appearances.

It's important to recognize California's court didn't end the practice of bail, although some lawmakers want that. Rather, it forced judges to consider whether defendants can afford the bail set and whether other means -- such as ankle monitors, frequent check-ins with pre-trial case managers or drug and alcohol treatment -- can serve the courts' needs.

In short, as the defendant in the California case argued, the idea is no person should lose the right to liberty simply because that person can't afford to post bail before trial. Advocates for reform also cite studies showing the way bail is applied exposes disparities in treatment for minority and poor people charged with crimes.

Among the problems with cash bail, at least when the defendant cannot afford it, is that it can disrupt positive things going on in the accused person's life, such as holding a job or having a place to live. Disrupting that much of a person's life on an accusation that may or may not result in a conviction is a recipe for re-offending. For some people, formal charges are never filed or they're dropped after months in the system.

Cash bail is easy. It doesn't take a whole lot of thinking or analysis. It's a simple "Here's the price to get out of jail before trial and you can pay it or not." A judge doesn't have to consider whether the accused is scraping by on minimum wage or someone named Walton, Hunt or Stephens.

In Arkansas, advocates for criminal justice reform are pushing for changes to cash bail as well, but not always with a receptive audience. Here, change probably isn't going to come out of concern for those incarcerated, but by convincing evidence that the state and counties might actually spend less money on jails and prisons if the reforms are made.

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