California Replaces Money Bail with Risk Assessment

California recently became the first state in the country to ditch the money bail system. The new law prevents courts from assigning bail to defendants following an arrest. Instead, whether or not a defendant should be released will depend on that person’s perceived threat to society. The shift away from money bail is intended to reduce racial bias and discrimination in California’s criminal justice system.

When is California Getting Rid of Money Bail?

The California Money Bail Reform Act was signed into law by Governor Jerry Brown on August 28, 2018. However, the law itself will not become effective until October 1, 2019. This means that you can still be held in lieu of bail after an arrest for the next year. Why is California waiting so long to implement the new law? The state needs time to fully develop and adjust to a new system.

Racial Bias in the Money Bail System

Bail is a way of punishing defendants before they are ever even tried for a crime. Unfortunately, under the money bail system, minorities are more likely to suffer. Research shows that black defendants are much more likely to be assigned bail than white defendants. Black defendants aren’t just assigned bail more frequently than white defendants. The amount of bail a black defendant is required to pay is generally much more than a non-black defendant. At least one study found that black defendants are assigned bail amounts that are nearly $10,000 greater than white defendants. Another study found that bail for black defendants tends to be 4 times higher than bail for white defendants.

It’s important to understand that black and minority defendants begin to fight racial bias from the moment they are pulled over or stopped by police. Black and minority defendants are more likely to be:

  • Stopped by police
  • Subjected to unnecessary and excessive police force
  • Victims of unlawful searches and seizures, and
  • Arrested for and charged with serious crimes.

Each of these things can influence the money bail system. Defendants who are charged with more serious crimes are more likely to be assigned bail.

New Risk Assessment System

Under the new law, California courts will no longer use money bail. Instead, whether or not a defendant should be detained will depend on that person’s perceived risk to society. If you are arrested for a misdemeanor, you automatically get a free pass out of detention. The state must release you within 12 hours of booking. There are limited exceptions to this rule.

If you’re arrested for a felony or one of a few serious misdemeanors, you’ll be subject to pretrial risk assessment. The risk assessment is performed to determine whether you are:

  • Low Risk
  • Moderate Risk, or
  • High Risk.

If you’re classified as Low Risk or Moderate Risk you should be released on your own recognizance. You’ll still be required to show up in court for future hearings. If you don’t appear in court when you’re supposed to you will face harsh consequences. A judge may issue a bench warrant for your arrest and/or charge you with contempt of court.

If you’re classified at High Risk you will be detained until the criminal proceedings against you have been resolved. You will be classified as High Risk if:

  • You have been convicted of a serious or violent felony within the past 5 years
  • You committed the alleged crime while awaiting sentencing for a serious or violent felony
  • You intimidated or threatened a witness or victim,
  • You were on post-conviction supervision (other than informal probation) when you were arrested.

Other factors that can influence your risk assessment include:

  • Your criminal record
  • The specific crime with which you’ve been charged, and
  • Witness and/or victim testimony.

New Risk Assessment System Fails to Address Racial Bias in the Criminal Justice System

California lawmakers say that the state is abandoning money bail to fight racial injustice. While the new system may appear to be racially-neutral, it may still be most devastating to minority defendants. Why? The new system doesn’t account for racial bias that occurs before a defendant ever reaches the risk assessment process. Black and minority defendants are more likely to be stopped by police and charged with serious crimes. This will directly impact whether or not a defendant is released immediately (i.e., arrested for a misdemeanor) or required to undergo a risk assessment.

The new procedure does make an effort to combat racial bias in the judicial system. However, the problem cannot be solved if all of the issues are not addressed. Until racial bias and discrimination are fully erased from the criminal justice system, the pretrial detention process will always favor white defendants over minorities.

You Can Fight Your Pretrial Detention

Getting rid of the money bail system may help to fight racial bias in the criminal justice system. However, there is no guarantee that the risk assessment process will properly evaluate a defendant’s true threat to society. You may still be detained because the new system is broken. If this happens, you have the right to fight the court’s decision. You can ask the court to reconsider an modify your detention. Hiring an attorney will help you secure the best possible result.

If you need help after an arrest, do not hesitate to call the Law Offices of Vikas Bajaj for help. Our San Diego attorneys are prepared to help you fight criminal charges every step of the way.


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