Frank Stolze with LAList writes that Los Angeles County’s cash bail system received a significant blow as a superior court judge issued a preliminary injunction against the practice of requiring cash bail from individuals who have not yet been arraigned. The decision comes as a significant development in a system that has long faced criticism for favoring the wealthy and failing to enhance public safety. 

With the current cash bail system, if an arrested individual can’t afford the allotted bail amount, they’re detained until their court date. Bail amounts are determined based on the severity of the alleged crime – more violent crimes have higher set bail.

Judge Lawrence Riff declared the cash bail practice a “clear, pervasive, and serious constitutional violation.” The ruling was made in response to a lawsuit seeking to end cash bail.

As a result of the injunction, Los Angeles County, the state of California, and civil rights attorneys involved in the lawsuit have been given 60 days to propose alternatives to cash bail. These alternatives may include releasing individuals on their own recognizance, implementing electronic monitoring, or providing other forms of supervision.

During this period, the judge ordered cash bail only to be required for those accused of serious or violent felonies and select misdemeanors, such as domestic violence.

The lawsuit argues that detaining individuals due to their inability to pay arbitrary amounts for release violates their due process and equal protection rights under the U.S. and California constitutions.

Critics of the cash bail system argue that it imposes a fine on individuals who have not been convicted of a crime and creates an unjust disparity between the wealthy and the indigent. If bail is paid, the defendant is released from detainment until their court date. When they report to court, the bail amount is refunded minus a bail agent fee if used. If bail can’t be paid, the defendant is kept in jail. 

So while cash bail is intended to ensure court appearance, opponents contend that it disproportionately affects marginalized communities and creates an unfair cycle of incarceration by holding them in jail because they can’t afford the bail amount.

Opponents point out that bail plays an important part in our criminal justice system. Bail agents provide accountability for justice by ensuring that all people can exercise their right to bail. Whether a person is guilty or innocent does not come into play as a bail agent. The core duty of the bail agent is to underwrite a bond and ensure the person will appear in court.

The bail industry does not establish the bail cost or schedule – that is determined by each county. Still, often, bail agents work with the defendants’ families to help find the accused drug treatment programs and counseling and help create friends and family networks around the accused to ensure they appear in court and follow through with the requirements imposed by the court.

In a small sample of 3,000 persons, the California Judicial Council found (Pretrial Pilot Program [Zero Bail], July 9, 2021) “30 percent failed to appear in court as required, and 40 percent were arrested for a new offense.”

From 2011 to 2020, the California Attorney General reported 14.8 million arrests in the Golden State. If the Judicial Council zero bail study findings were projected to these numbers, 4.4 million of those arrested would fail to appear in court, and 5.9 million would have committed a new crime.