California Bail Policies

There are over one million adult arrested in California on an annual basis. Current statistics reveal that approximately one third of these individuals are bailed out, and only about three percent (3%) fail to appear in court for one or more legal proceeding.

The Eighth Amendment of the U.S. Constitution guarantees equal protection of the law and the right to reasonable bail, but this subject is not simple and for some it is controversial. The intent of the bail system is to protect an individual who is presumed innocent  from being punished unless and until proven guilty. It involves the payment of money or a deposit of security to assure a defendant who is charged with a crime will be present in Court on each of the hearing dates. A fixed amount of bail is established by case law or statute, and it is based upon the severity of the crime(s) and the flight risk of the defendant. In other words, bail is used as an incentive for the defendant to  show up for each of the court proceedings

It has often been argued that being required to post bail places an unfair and unreasonable burden on the middle class, and even a far greater challenge for the poorer population who cannot afford to post large sums of money to be released from jail. Because one is considered innocent until proven guilty, which requires proof beyond a reasonable doubt, the opponents of California bail policies point to the fact far too many are required to remain in jail because they cannot afford to post bail, and these very same individuals may later be deemed not guilty and/or likely enter into a plea agreement of a much lesser crime, which if that reduced offense was charged in the beginning, the bail would have been much lower. These opponents of the California bail system also argue taxpayers have to pay for the time and costs to maintain a defendant in jail, such as the salary of the Deputy Sheriffs, food and many other expenses related to the incarceration. It is further postulated that lawyers who have contested bail by taking the case to one of the six districts of the California Courts of Appeal, universally have been unsuccessful in reversing the Superior Court’s Order re: Bail.  

Proponents of the bail system in California contend that Superior Court Judges do an excellent job in their role of determining at a bail hearing or arraignment whether the facts support no bail (O.R. or free on one’s own recognizance); and/or imposing a lesser or higher bail amount. The Court reviews the defendant’s prior criminal history, if any; the seriousness of the current charges; whether there is  potential danger to the victim(s) of the crime and/or their family; the potential risk of harm to the public safety and, therefore, society at large; whether the defendant has ever failed to appear and, therefore, may now as well be a flight risk; and/or a host of other facts, including the “ties” the defendant has to the community, such as full time employment, a lease or ownership of his/her residence; and, family members; all of which tend to be relevant to the Court’s order regarding the extent of bail, if any.

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