bail bonds storefront lit in eerie red neon
(Photo/Wikimedia-Daniel Schwen CC BY-SA 4.0)

Critics of the bail system are off the mark in criminal cases

Twice within the past year, J. has published opinion columns from Bend the Arc members who disregard, probably from ignorance, genuine criminal court proceedings regarding bail for those accused of crime and the rule of law itself.

For over two years, a cadre of liberal politicians, public defenders (naturally) and self-proclaimed “experts” have attacked the constitutionally approved system of deciding whether to release an accused defendant on his or her “own recognizance.” That means without bail, but usually with a court order to report by telephone every day to a responsible court office or condition release upon depositing a bail bond in a specified amount with the court clerk.

The bond constitutes an insurance policy. Its purpose under the California Constitution and Penal Code, as well as the U.S. Constitution’s Eighth Amendment, is to protect victims of the alleged crime and public safety generally, and ensure the defendant’s appearance at all court proceedings. The bond is sold by bail agents who usually charge 10 percent of the bond amount as their premium.

Using statistics based upon race and economic standing, these modern-day mavens use words like “unethical” and “bondage,” and demonstrate unfamiliarity with criminal court proceedings, constitutional law and common sense. They demand reliance upon computer algorithms to inform a judge of the odds the defendant will appear voluntarily for all courtroom proceedings or harm alleged victims or other people while awaiting trial. Their California quest rests on Senate Bill 10, passed last year by the state Senate, but rejected by the Assembly Committee on Public Safety, the chairman of which is a Los Angeles African American graduate of Harvard University’s Kennedy School of Government, a Democrat at that. J. readers were told such “bail reform legislation” would be “voted on within the next month.” I wouldn’t take that to the bank because lawmakers now realize such a bill would ruin the state’s criminal law system.

The California Constitution expressly prohibits excessive bail, requiring a judge to consider the seriousness of the alleged offense, the defendant’s prior criminal record, and the probability of the defendant’s appearance at trial and all courtroom proceedings. In the court’s discretion, the defendant may be released without bail. The California Constitution mandates that nobody accused of a serious felony may be released without a court hearing after a reasonable opportunity for the prosecution and defense to argue the matter. If a judge grants or denies bail or release without bail, the reason must be stated in open court and included in the court’s written minutes.

No judge in my experience disregards the taxpayer costs of jailing a defendant without justification. All but 12 small counties in California employ trained professionals who, after investigation, recommend to the judge either release pending trial without bail or not doing so. Even if a judge orders bail in an amount that the defendant cannot obtain, the defendant constitutionally and statutorily possesses the right to a jury trial within 30 days after pleading not guilty. The bail amount is not based on defendant’s race, religion, nationality or economic means.

On weekends, at least one judge is on duty to set or reset bail or order on release without bail if the facts so justify. Advocates for the new dehumanizing computer proposal cannot name one person in jail who’s not there in accordance with law.

Few jurisdictions have adopted the computer algorithm embraced by criminal law amateurs. New Mexico did and suffered a released defendant who then allegedly committed a murder in New Jersey after release without bail. New Jersey did in 2016. On July 3, 2017, New Jersey Assemblyman Bob Andrzejczak, a Democrat, wrote the California Assembly Speaker that he had supported such legislation and “it has been an absolute disaster.” He added: “We were told that there would be no danger to citizens because the dangerous criminals would not be released and only ‘low level’ criminals would be eligible. The reality is that dangerous and career criminals are released daily within hours of arrest.” New Jersey’s crime rate increased over 13 percent from January to July 2017.

SB 10 is unconstitutional, based also on the false premise that the California bail system makes poverty a crime. Poverty isn’t a crime, but committing a heinous act is. Jewish values address those issues as well.

Quentin Kopp
Quentin Kopp

Quentin Kopp is a retired California Superior Court judge, former state senator and San Francisco Board of Supervisors member, and member of J.’s board of directors. He lives in San Francisco.