The Value of Bail is All About Location, Location, Location

If you were arrested and accused of burglary, how much do you think your freedom would be worth? $10,000 $20,000? $50,000? You might be surprised to know that the answer depends entirely on where you committed the crime.

Under California law, judges in each county annually adopt a master bail schedule that fixes the bail amount for each crime in the penal code. It serves as the default amount for anyone arrested for a bailable offense. Later on, a judge or magistrate may choose to deviate from the scheduled amount pursuant to considerations set forth in Cal. Pen. Code 1275, but until that time the schedule serves as the de facto amount.

In theory, a master bail schedule doesn’t appear to be a bad idea. It promotes consistent decision making, which is an important goal of our criminal justice system. It also ensures that only neutral judges and magistrates are entrusted to exercise discretion when setting bail. Imagine entrusting an arresting officer with the power to determine the bail amount for someone who resisted arrest. It is not hard to see how that would be bad for the defendant.

Although a master schedule might be a good idea in theory, the way in which it is implemented in California is just plain odd. The penal code states that the only thing judges are allowed to consider when determining the county bail schedule each year is the nature of the offense: in other words, how serious or heinous the crime is. (pdf pg. 15). For example, making a criminal threat in violation of California Penal Code §422 may carry a bail amount as low as $5,000 in some counties, and as high as $150,000. (pdf. pg 17). The natural follow-up question is what makes an offense more serious in one county than another?

A hypothetical may be helpful to illustrate this point further: Imagine you are standing at the county line dividing Contra Costa and Alameda Counties. You are standing in Contra Costa, and across from you is Joe Blow who is standing in Alameda. Joe Blow shouts “I am going to kill you!” which is a criminal threat under the penal code. If Joe Blow is arrested by officers from Contra Costa, his bail is $25,000. (pdf pg 7). But if he is arrested by officers in Alameda, his bail is $50,000 for the exact same crime. (pdf pg. 11). Joe Blow is simply a victim of geography.

One could make the argument that counties should have the freedom to decide for themselves how serious a given offense is. Take drug possession, for example. A county with a more liberal population may not care as much about simple drug possession, whereas a more conservative county may view drug possession more harshly. Under that scenario, judges may adopt disparate bail schedules that reflect the sentiment of the community at large. This wouldn’t be any different than law enforcement agencies setting priorities for which crimes they will enforce in the community they serve. Since our laws are ultimately designed to reflect the will of the people, communities should have the right to determine what sort of community they what to live in.

That argument would carry greater weight if we didn’t already have a state legislature that is responsible for criminal justice legislation. The California Penal Code is voted on and adopted statewide, with no discrepancy between counties. Although judges may exercise discretion when sentencing, there are limits to any criminal punishment that are also set on a state-wide basis, not county to county. If crimes and their penalties are established statewide, why should bail be any different?

Proponents of county bail schedules may also argue that the schedule is merely a starting point. Any disparity in schedules is not actually harmful because judges have the discretion to tailor the amount to the individual at arraignment. In other words, the system is designed to be self-correcting. However, it appears from my personal observations that it is common practice for judges not to deviate from the amount set under the schedule. I have observed 54 arraignment hearings in Santa Clara County and the judge stuck with the scheduled bail amount in roughly 76% percent of the cases. When it came time to set bail, the judge would turn to the prosecutor and ask what the scheduled amount was, and then simply set bail at that amount. Granted, this is a limited sample from one county in California. I am not claiming that this is in anyway proves that this is common practice amongst judges; however, it does give some indication that judges are defaulting to the scheduled bail amount instead of tailoring their decisions to the individual.

Under the current system, a defendant’s bail amount depends entirely upon the county in which the person is arrested. Currently, Equal Justice Under the Law is challenging the use of generic bail schedules in federal court on the grounds that they violate equal protection. We may not all agree with doing away with a bail schedule completely; however, we should all get behind the idea of eliminating the disparity amongst county bail schedules. A bail schedule should be passed by a government entity at the state level – either the legislature or Supreme Court. In fact, legislation was proposed back in 2013 that would have established a statewide bail calendar; however, it died in Senate committee despite unanimous support in the Assembly.  This type of legislation ought to be revisited because it is a step forward toward consistency within our criminal justice system.

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