Legal Review: California Becomes the First State to Completely Abolish Cash Bail System

By Criminal Defense Attorney Jo-Anna Nieves of The Nieves Law Firm

In 2018 California Governor Jerry Brown signed a bill that will abolish the cash bail requirement in California’s justice system.

It is something that Brown has been fighting for since 1979 and that gained momentum after a California appellate court deemed the court’s cash bail system to be unconstitutional. While cash bail will still be a part of the court system for the next year, it will be a thing of the past beginning in October 2019.

The new law has been named the California Money Bail Reform Act. Under the Act, individuals charged with a crime will no longer have to post cash bail in order to be released. Instead, the courts will determine if someone is eligible for release, or if they need to remain in custody.

Each jurisdiction will be responsible for creating their own formula to be used when making those decisions. That formula will include a number of different elements of each individual case. The courts will determine the likelihood of a defendant appearing for future court appearances, the severity of the crime and how likely the accused is to reoffend if released.

When the courts decide that someone could be released, that release may come with some conditions. Some individuals may have to agree to be monitored via GPS, while others may have to regularly meet with an officer.

“The bail system has been in need of reform and the new law took a step in the right direction in eliminating disparities in income when it comes to release” says Jo-Anna Nieves of The Nieves Law Firm.

“In the past only the rich have been able to pay for their freedom while those with financial challenges had to remain in custody. SB10 landed a blow to the cash bail system but the continuing concern is that it does not provide for presumptive release; instead, it allows judges to have subjective discretion to err on the side of preventative detention with the burden on the defense to prove otherwise.”

The new California law is similar to a cashless bail system in Washington, D.C., but there are differences between the two. In Washington, D.C., the majority of defendants can be released without cash bail. Prior to their release however, they must provide a signature bond, which is an agreement that they will appear for all future court hearings.

As in California, other conditions may also be attached to that release including meeting with a Pre-Trial Services worker, random drug testing, or orders to stay away from certain individuals.

Other defendants in Washington, D.C. however, are not so lucky. When the crime committed is considered to be serious, the defendant may still be required to post cash bail before being released.

It is this difference that truly separates the recent change in California law from the law in the nation’s capital, and makes California the first state to completely abolish cash bail altogether.