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Bail is Out in New Jersey – Will California Follow Suit?

Posted by Joseph Tully | Feb 02, 2017

California and New Jersey don't have much in common, other than a high cost of living and proximity to an ocean. On the judicial front, they now have even less in common. On New Year's Day, bail reform went into effect in New Jersey.

The result of the Bail Reform and Speed Trial Act means that most minor level offenders will not have to post bail, and will make their initial court appearance within 48 hours of their arrest. High-risk defendants are detained without bail.

Prosecutors must meet certain deadlines, or defendants who are jailed will be released. An indictment is required within 90 days, with a trial scheduled within 180 days.

Although it will take time, New Jersey taxpayers should see savings under the new system. While more staff are required to keep the system moving more efficiently, a huge reduction in the number of low-level defendants languishing in jail – on the taxpayer's dime – because they can't make bail should soon save the state hundreds of thousands of dollars daily.

There's a fairness flip side – rich, high-level defendants who can pay top bail aren't getting out of jail under this system.

California Dreamin' of Bail Reform

What's the likelihood of California doing something similar? Lawmakers say they want bail reform and claim they will make it a top priority in 2017. The Los Angeles Times quotes Democratic Assemblyman Ron Bonta, Oakland, as saying there is “unprecedented” energy and momentum on the issue, but he also knows there will be tough resistance from the insurance and bail industries.

Bonta and Senator Robert Hertzberg, Van Nuys, introduced The California Bail Reform Act of 2017 on the first day of the legislative session.

Ugly Bail Facts in California

In California, one out of three people is in jail because they can't afford to post bail. There's also a minimum bail rate of 8 percent set by state law, which just exacerbates the situation.

Black and Latino defendants often receive higher bail than whites arrested for the same crime. Unsurprisingly, those who cannot post bail are among the very poorest in society. Approximately 80 percent of California jail deaths involve people in pre-trial incarceration – and about one-quarter of those deaths result from suicide.

People held in jail for long periods who cannot pay bail are more likely to go on to commit crimes – the environment becomes a college for criminals. California taxpayers pony up $4.5 million per day to keep low-level defendants for whom bail is out of reach in jail. Reform is long overdue.

State Intervention

As Attorney General, Kamala Harris, began intervening in a case on behalf of the bail system, after San Francisco sheriff Vicki Hennessey and city attorney Dennis Herrera refused to defend the state law in a federal lawsuit.

According to the San Francisco Chronicle, Herrera said “Keeping people locked up for no reason other than they can't afford to post bail can have far-reaching consequences. People lose their jobs and their homes. Families fall apart. Taxpayers shoulder the cost of jailing people who don't need to be there.” He added that the current system was unconstitutional and bad public policy.


Bail reform is just the tip of the iceberg when it comes to California jails and prisons. Public Safety Realignment, passed in 2011, and Proposition 57 have also been band-aids to try to fix the overcrowding jail and prison populations.

Realignment mandates that people sentenced to less serious and nonviolent offenses serve their sentences in county jails, rather than state prison. Proposition 57, passed in the 2016 election, allows parole consideration for nonviolent offenders who have served the full term for their primary offense.

It establishes credit for good behavior and education attainments while taking credits away for bad behavior. Judges rather than prosecutors will decide whether minors are prosecuted as adults, with the goal of rehabbing minors in the juvenile justice system.

The overall problem is too many laws, crimes, rules and regulations that anyone can be caught up in. The fact that too many resources are being devoted to vindictiveness and petty power trips should be addressed.

What kind of society do we want to be, one that is swept up in a furor, resource-draining assault on a perceived boogeyman or a society that plays it smart and rewards good behavior and not only punishes but actually rehabilitates bad behavior?

Eradicating bail for low-level offenses, although excellent in principle, is just another finger in the dike in a line of recently attempted ways – such as Realignment and Proposition 57 – to band-aid the systemic problem. If you or someone you love is swept up in California's unjust criminal justice system call an experienced criminal lawyer at Tully-Weiss to learn your rights. We fight injustice daily and win.

About the Author

Joseph Tully

Founding Partner, Criminal Law Specialist Our founding attorney, Joseph Tully, is sought out for his expert legal advice throughout California. With over 20 years of experience as a criminal lawyer, in 1000+ felony and other cases, Tully served as felony trial counsel as a public defender before...