Is eliminating money bail system a double-edged sword for Merced County defendants?

Starting Oct. 1, 2019, Merced County defendants in non-capital crime cases won’t have to worry about posting often expensive bail for their release from custody, according to a new law signed Tuesday by Gov. Jerry Brown.

Senate Bill 10 would eliminate the money bail system in California and replace it with a risk assessment-based system. The goal is to allow poor defendants the same real opportunity for pre-trial release as those who could afford bail.

The new system could help alleviate the financial duress for the roughly 55,000 Merced County residents who, U.S. Census data states, live in poverty, county officials said.

But critics say the new law also creates a system that is vague, giving local courts and judges too little direction and too much latitude to decide who should and shouldn’t be released from pre-trial custody.

In the current money bail system, defendants in non-capital crime cases have the ability to post bail and be released before an upcoming trial.

The defendants can post bail through their own pockets, or use property as collateral. Or, they can retain the services of a bail bondsman if they can’t afford bail, which could reach six figures.

A bail bondsman would help a defendant pay bail by accepting a smaller amount from a defendant in addition to a fee. The bail bondsman would then be tasked with tracking their clients so the clients appear in court and don’t lose the bail money.

Under the new risk assessment-based system, “low” risk defendants would be released, while “medium” and “high” risk defendants may be held in custody. No bail is involved.

Those released could have unspecified non-monetary conditions that could include an ankle monitor or regular check-ins with local agencies that would bear the cost of monitoring currently done by bail bondsmen.

Local superior courts would create or designate a division that handles pretrial assessment services and formulates a risk assessment system, while a judge would decide whether a defendant should be released.

While thousands of government jobs would be created in the new system, the bail bond industry would be destroyed, putting thousands of licensed agents out of work.

In Merced County, questions about how the risk-assessment would work have concerned public defenders and bail officials who agreed reform is needed.

The new system will require additional state funding. But new local jobs would be created, according to Merced County District Attorney Larry Morse II. Morse, who has worked on bail reform bills with legislators as a co-chair for the California District Attorneys Association for the last two years, said the prosecutors group stayed neutral on the bill.

“It’s not perfect,” Morse said. “But it does achieve the goal of the proponents, which is to end a system in which the ability to be released from custody is dependent on how much money they make.”

Assemblymember Adam Gray, D-Merced, and State Senator Anthony Cannella, R-Ceres, voted against the bill in their respective houses. Gray said he supports reforming the money bail system, but he couldn’t support a reform bill that replaces money with potentially faulty risk assessment systems that could lead to the release of defendants who may be high-risk. There should be more guarantees, he added.

“Without these risk assessments, judges and prosecutors will not have sufficient information to make an informed decision about the flight risk posed by each defendant,” Gray said.

The effects it could have on defendants’ rights are also troubling, according to local attorneys and bondsmen. “When you’re not able to post bail, you’re not just losing your rights,” said Merced County attorney Chris Loethen. “You lose contact with family, you’re not able to kiss your wife, those things that lead to a balanced and healthy life.”

Loethen said if current county risk-assessment procedures are any indication, the bail replacement’s reliance on local agencies’ own process could be problematic.

According to the current Merced County Probation Department’s pre-trial risk assessment, seven questions determine whether someone should be detained or released. “Possibly, now every one of my clients who has had a gang allegation could be deemed high risk no matter how minor or major the current crime is,” Loethen said. “These are people who may have been able to post bond.”

Loethen said the system could also create a bottleneck on the court calendar, straining an already short staffed Public Defender’s Office.

“Overall, we’re thrilled about the fact that a poor person will not be at a disadvantage,” Merced County Public Defender David Elgin said, noting that many indigent defendants currently opt to stay in jail because they can’t afford bail. “But we are still looking at the details on how this is going to play out. We’re going to make sure our clients are fully protected.”

Court officials also are waiting for “details.”

Merced County Superior Court CEO Linda Romero-Soles on Wednesday declined to comment on how the bill would affect the court, noting court administration needed more information and direction from the Judicial Council of California on how to process the bill.

The bill, although signed by Brown, could receive a challenge in the form of a referendum drive by bail bondsmen who claim the sweeping change was hasty and would destroy the bail bond industry while at the same time being a “horrible” deal for taxpayers.

If successful, the referendum could halt any changes until the 2020 election. “I know bail bondsmen have not done well at presenting ourselves professionally,” said Steffan Gibbs, owner of All-Pro Bail Bonds, which helps about 50 to 60 people with bail per month in Merced County. “Bail needs reform, but the way it’s done matters,” Gibbs said.

The bill would “bankrupt” Gibbs, he said, adding that 150 of his employees in 20 offices will lose their jobs.

Gibbs noted Merced County’s bail schedule, which determines bail amounts for criminal charges, is one of the highest in the San Joaquin Valley. The bail schedule is determined every two years by Merced County judges, who will have more latitude in deciding whether someone is released.

Gibbs also said the new system could interfere with defendants’ Eighth Amendment rights against excessive bail and cruel and unusual punishment.

This story was originally published September 3, 2018 at 6:00 AM with the headline "Is eliminating money bail system a double-edged sword for Merced County defendants?."