Will Bail Bondsmen Go the Way of the Blacksmith?

Joel Fox
Editor and Co-Publisher of Fox and Hounds Daily

The bail bond business is trying to avoid demise by overturning a state law to eliminate money bail with a referendum, Proposition 25.  Voters will have to decide if what replaces the money bail system is effective and keeps communities safe from crime.

First, a little background. In 2018, the California Legislature passed SB 10 to essentially end the process of money bail in California. Defendants could put up bail money, often through a bonding agent backed by an insurance company for a fee, promising to return to court when called. The bail is lost if the defendant does not return.

Legislators thought this process unequal to people on the lower rung of the economic ladder who did not have, or could not secure, the resources to get a bond. They argued that poorer defendants who can’t get bail have to wait for arraignment in jail, perhaps losing a job they desperately needed.

The legislature created a new system that would eliminate bail, create a new process for release before arraignment, and change the existing process for release at arraignment. SB 10 requires that most alleged misdemeanor offenders require automatic release. Felony and some misdemeanor defendants would have to be assessed for their risk to the community, but the assessment process must be accomplished swiftly in 36 hours. Assessments will be calculated by assessment staff and judges using computer algorithm risk tools.

The bail bond industry responded by filing a referendum and qualifying it for the ballot.

Giving the poor a chance to avoid jail time and keep working while dealing with the charge against them is one side of the issue that affects people’s lives. On the other side, bail bonds agents would lose their jobs.

For voters who feel distanced from the inner workings of the criminal justice system, one question they face is will the new system make the community less safe? 

During the lockdown during the coronavirus pandemic, the California Supreme Court experimented with ending the money bail system. Anecdotes from that period indicate that some people who escape the bail requirement are soon back on the street committing additional crimes. This experience was also witnessed in New York when the bail requirement was ended there.

But perhaps the most consequential issue dealing with the no cash bail movement is the assessment method to determine if a defendant is deserving release. 

The replacement scenario is a computer-generated predictive model based on algorithms to determine if someone should be held in jail. Certain traits and backgrounds go into the model. Because of the pre-determined trait qualifiers, some civil rights groups raised concern with SB 10, afraid minorities would suffer the most under the new system, even though proponents of the bill claimed the new system would be a blessing for minorities.

Underlying this whole concept is the fact that the justice system will be relying on computer-based assessments. California government’s experience with computers is a sad story. In the home of the Silicon Valley and a Golden State of innovation, government runs off of old, often malfunctioning, computer systems. The Department of Motor Vehicles has notable problems with the computer systems. Now during the pandemic, the Employment Development Department has massively struggled with computer problems.

Will the computers serve the criminal justice sector of government any better?

Proposition 25 is a referendum, meaning a law passed by the legislature and signed by the governor has been referred to the voters to make a final decision. Therefore, under the referendum format, voters who want to keep the law must vote yes, voters who want to wipe the law off the books must vote no.

If Proposition 25 passes and the law is implemented, the bail bond industry will go the way of the blacksmiths when Americans gave up horses for transportation for the automobile and other improved manufacturing and technological advancements came along.

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