If you're arrested in California, how much bail you'll have to pay depends not on the offense, but on the location. Anyone arrested for misdemeanor public drunkenness in Los Angeles must pay $250 in bail to get out of jail, but the same level of drunkenness in San Bernardino County costs a whopping $5,000.

A prostitute arrested in Orange County will have to cough up $1,000 in bail – but $50,000 in San Bernardino County. These huge discrepancies based on nothing else but local geography are a major factor behind a growing bail reform movement in the State of California.

Whether or not an offender can afford bail means there is a different type of justice for the poor and for those who can pick up the bail tab.

No Bail Reform in 2017

Advocates for state bail reform must wait at least another year, as Governor Jerry Brown announced in late August that Senate Bill 10 will be held while negotiations continue with officials and law enforcement personnel.

Senate Bill 10 would have changed the existing law, which requires approving and acceptance of bail and the issue and order for the appearance and release of the arrested person. It would have greatly reduced the use of cash bail and replaced it with a system of determining an offender's danger to public safety and a potential flight risk. Any bail deemed necessary would depend on the defendant's ability to pay.

While the Senate passed the bill in May, the Assembly version was voted down the following day. Brown says work on the bill is continuing and a new version should be ready by early 2018.

66 Percent of Those in California Jails are Awaiting Trial or Sentencing

In 2016, two-thirds of the people in California's jail were awaiting trial or sentencing, a number averaging about 48,000 individuals. Many of these people are incarcerated because they cannot afford bail.

There are no firm statistics about who is in jail because of inability to foot bail and who remains there due to prior convictions. California relies far more on pre-trial detention than other states. Senate Bill 10 notes that the consequences of pre-trial detention include more likelihood that innocent people will plead guilty to a crime and/or experience longer sentences upon conviction. Other effects include job and/or housing loss and “traumatic family disruption.”

The bill points out these issues disproportionately affect low-income individuals and people of color.

Throwing Darts at a Dartboard

Criminal laws are the same across the state, so why do bail amounts differ so much?

The answer lies in California's law mandating that judges in each county create their own bail schedules. Judges in every CA county meet every year to approve the bail schedules. Exactly what judges take into consideration when setting bail schedules is personal and mysterious.

Even Maggie Kreins, the vice-president of the California Bail Bonds Association, owner of a bail bond company and bail proponent, admits there is little rhyme or reason to bail schedules. She told The Press Enterprise, “Unfortunately, we've never been able to ascertain what the judges are looking at. It's almost as if they're picking a charge and throwing darts at a dartboard.”

Judges do have the discretion to raise or lower bail amounts.

They may take into consideration the nature of the crime, any prior criminal record, and the defendant's community and family ties. Bail is often denied for those deemed a flight risk. Low-level or first-time offenders may have bail waived and are released on their own recognizance.

A San Bernardino County public defender said that few people picked up for prostitution are dealing with $50,000 bail amounts, as most are released on their own recognizance.

Bail Reform Proponents and Opponents

Bail reform advocates are facing tough opposition – and it's not just from owners of bail bond businesses. Some law enforcement officials do not want to get rid of bail because they believe eliminating it would cost taxpayers more in the long run because of risk assessments. Proponents argue that doing away with bail would help taxpayers because fewer inmates behind bars means less cost.

The one thing both sides agree on is that the lack of uniformity in bail amounts across the state is problematic.

The amount of bail, based merely on the location of the alleged offense, can make the difference between whether a person can or cannot afford to go home. That, in turn, may make the difference in whether their family can retain their dwelling or whether they will indeed experience trauma beyond one member's arrest.

Facing a difficult bail problem in Contra Costa, Alameda, San Francisco or other Northern California county? At Tully & Weiss our experienced expert criminal lawyers we can often turn the bail tables in your favor. Give us a call to learn your options – you likely have more than you think.