Will replacing cash bail with more power for judges reduce or increase pretrial jail for suspects? Photo: Arne Dedert/Picture Alliance via Getty Image

Nearly forty years ago, a governor of California in his State of the State address “urged the Legislature to take on bail reform … calling it a ‘tax on poor people.’” That was Jerry Brown, who yesterday, near the end of his fourth non-consecutive term in office, finally had the opportunity to sign a bill abolishing cash bail in the state.

The new law, enacted in response to a state court decision declaring the old system of cash bail an unconstitutional denial of due process, places California at the forefront of one prong of the national criminal justice reform movement, which encompasses a variety of different measures (including most notably sentencing reform) to reduce the human and fiscal costs of unnecessary incarceration. Bail reform targets the practice of jailing those who can’t afford to pay the court (or more bail bondsmen) — the funds necessary to remain free pending trials that may occur months or even years later.

The unanswered question is whether the new law will actually reduce incarceration. Conservative critics (notably the bail bond industry, which would be all but abolished in California by the new law, but also some opponents of criminal justice reform generally) think it will, to the peril of public safety. But some original sponsors of the California bail reform initiative actually opposed the legislation Brown signed on grounds that the new system replaces cash bail with too much discretion for judges to jail defendants after applying “risk-assessment” tools of the danger they allegedly pose, as the Los Angeles Times reports:

[T]he final bill didn’t satisfy some early backers, who complained that the final version of the legislation would allow judges to incarcerate more people, and did not include enough oversight over risk-assessment tools found to be biased against communities of color.

“No one should be in jail because they are too poor to afford bail, but neither should they be torn apart from their family because of unjust preventative detention,” said a statement from American Civil Liberties Union directors Abdi Soltani in Northern California, Hector Villagra in Southern California and Norma Chávez Peterson, representing San Diego and Imperial counties.

John Raphling, a senior researcher with the nonprofit Human Rights Watch, said the law replaced an unfair system with a potentially worse one, “empowering judges to take away our liberty based on biased algorithms and the judges’ own subjective choices, with no standards and no due process.”

These same arguments have been heard in other states that have undertaken bail reform, notably New Jersey, which all but abolished cash bail last year. It appears similar fears of an actual increase in pretrial detention haven’t been realized there, at least so far, according to a local media report:

A 2013 study by the Drug Policy Alliance and Luminosity found that nearly 40 percent of jail inmates in New Jersey were locked up because they were too poor to afford their bail.

With someone’s release now determined by individualized factors including current charges and prior convictions, pretrial freedom is no longer exclusively for the most well-heeled criminal defendants.

The result is that far fewer people are sitting in jail across New Jersey. Through October, the county jail population dropped by 17 percent statewide. Officials expect it to fall even further in the coming years.

Nor has the crime wave many conservative critics predicted bail reform would produce actually materialized, at least so far. It is too early to determine, however, whether the discretion given to judges in assessing the risks involved in pretrial release is producing inequities in the system. And that will be a big issue in California, too.

The model that is driving the momentum for bail reform is the federal system, where defendants are often required to meet specific conditions for pretrial release (e.g., drug treatment, surrender of passports, electronic monitoring) or to sign contracts imposing stiff fees for non-appearance. Federal courts, of course, don’t hear most “street crime” cases. But there is also the example of the District of Columbia, as a recent Harvard Law Review item notes:

For decades Washington, D.C. has operated an effective pretrial system with almost no money bail. D.C. releases 94% of defendants pretrial, 90% of whom make their court appointments, and 98% of whom are not rearrested for a violent crime pretrial. These appearance and public-safety numbers are both higher than the national average.

Similar numbers in California and other states moving away from cash bail would clinch the case for this reform. But if crime rates escalate, for whatever reason, no one should underestimate the political temptation that will gain renewed strength to maximize incarceration again, no matter how unequal, unjust, or remote from the actual causes and consequences of lawbreaking.