How To Get Out Of Jail In Los Angeles (And Why Some People Think It's Fundamentally Unfair)

Photo by Jeremy Brooks/Flickr CC

Bail has been around a long time. In fact, the concept predates the creation of the United States of America.

So why do some people say it's time it went away?

The movement to eliminate commercial bail (that's when you get a bond agent to put up the money the court requires to get out of jail) has been growing. California is at the center of a lot of that debate. Here in Los Angeles, any changes to the bail system would have a huge impact.

[UPDATE AUG. 28: Gov. Jerry Brown signs bill making California first state to eliminate cash bail]

Consider this: Nearly 111,000 people were booked into L.A. County jails last year. Charges ranged from trespassing to murder. Some of those jailed are serving a sentence. But a lot (about 42 percent of inmates on any given night) are awaiting trial.

That's where bail can come in. Here's how it currently works in Los Angeles — and what could come next.

THE BAIL SCENARIO

Sometimes a judge will determine that a defendant must stay in jail while the case plays out in court. In other cases the law requires a defendant stay in jail while the case plays out.

Then there are the cases where people are released on their "own recognizance" to go back to their jobs, families and homes while dealing with their charges.

Then there's the bail scenario.

In these cases, a defendant can leave jail while the court case proceeds, if he or she puts down a chunk of cash — a financial guarantee — that person will show up in court when called.

The defendant can either put up the cash, or, for a fraction of the full bail amount, hire a bail bond agent to do so.

Here's the catch: a lot of people simply can't afford to make bail.

On any given day last year, about 5,000 people were sitting in L.A. County jails because they couldn't afford bail.

DETERMINING THE AMOUNT

Generally, the overall bail amount is set by a judge, who follows a "bail schedule" that outlines what bail should be for people accused of various crimes.

In L.A. County, bail amounts vary widely. Here are some examples.

A defendant, relative or friend can put up the full bail amount themselves. However they risk losing the money if the defendant doesn't show up for court.

Other times, a bail agent is hired.

Bail agents generally charge 10 percent of the bail amount as a fee, and will likely require collateral for the balance (think: house, car or bank accounts). The bail agent is then responsible for paying out the full bail amount if the client doesn't show up in court.

GETTING THE MONEY BACK

If a defendant (or that friend or relative) puts up the money, he or she can get it back after the court case ends.

If the person hires a bail agent, that 10 percent fee is nonrefundable. So guilty or not, the price of freedom while awaiting trial can be hundreds or thousands of dollars.

BY THE NUMBERS

  • The average bail amount for a defendant in a felony case, nationwide: $55,000 (according to a study published earlier this year in the American Economic Review)
  • Defendants earned on average $7,000 the year before their arrest.
  • Over half of defendants nationwide could not afford bail, even when bail was set at $5,000 or less.
  • Between 2012-2016, bail set for people arrested in L.A. County totaled $19.4 billion (according to a UCLA study published last year).

WHY IT WORKS

Privatizing the process for getting people to show up in court potentially saves law enforcement and courts a lot of time and money, as bail bond agents and industry groups tend to point out.

Bail bond agents have a financial incentive to make sure their clients show up to their hearings. Ideally, this means fewer warrants are issued for no-shows, fewer rescheduled court dates, fewer instances where police have to expend resources to hunt down someone who's skipped out.

So commercial bail costs taxpayers nothing and provides a system for releasing people from custody while they're awaiting trial.

WHY THERE ARE PROBLEMS

A number of experts argue that bail is fundamentally unfair and doesn't do much for public safety.

The main reason: An objectively more dangerous person could be walking the streets because he has money, while a less dangerous person sits in jail because he can't afford bail.

For example, a defendant who can afford bail who's been accused of domestic violence or sexual assault can get out of jail while the case progresses through the legal system — which could take years. Meanwhile, someone accused of burglary or indecent exposure could sit there because they don't have bail money.

To make matters worse, that UCLA study on bail in L.A. County found "the greatest sums of money bail were levied in the City Council districts with the highest rates of unemployment." On top of that, it said, "nearly four billion dollars in money bail was levied on houseless persons."

The Ralph J. Bunche Center for African American Studies at UCLA

There are other issues: a jailed defendant's children have to be either left with relatives or friends or enter the child welfare system; people who are held in jail can lose their jobs, and it can be difficult to reenter the workforce, which can set a family back financially for some time. Even a few days of incarceration can dramatically affect a person's life.

The Ralph J. Bunche Center for African American Studies at UCLA

Then, there are questions of justice.

PLEADING GUILTY

There are also indications that people who get stuck in jail because they can't afford bail might be more likely to plead guilty.

A study published in the American Economic Review earlier this year by researchers from Stanford, Princeton and Harvard found that sitting in jail while legal proceedings play out makes a person 14 percent more likely to be convicted or plead guilty, while being released while fighting a case makes a person 11 percent less likely to plead guilty.

When it comes to plea deals, being at home as opposed to jail benefits defendants "primarily through a strengthening of defendants' bargaining positions before trial," the study said.

The psychology behind that is clear, particularly for lower level cases: plead guilty and we'll ask for a sentence of "time served" so you get out now, or fight your case and sit in jail while it plays out.

RAILING AGAINST BAIL

Commercial bail is a hot issue right now for people looking to reform the criminal justice system. And in California, there are efforts on two fronts to take it down.

Effort 1: SB10

State Sen. Bob Hertzberg (D-Van Nuys) introduced a bill last year (SB 10) that would require California counties to use tools to assess a person's risk to society, not just the alleged crime.

The agency in charge would decide if a defendant is safe to release and under which conditions (like house arrest or regular check-ins).

Bail could still be used as a tool, but not bail bonds.

So if an individual was deemed safe enough to release on bail, the amount would have to be something that person could afford. The bail amount would be based on the defendant's income and assets, not the alleged crime.

The State Senate passed SB 10 last summer. On Aug. 28, Gov. Jerry Brown signed a version of this bill into law after a deal was struck by Assemblymembers considering the legislation. Under that deal, counties will adopt as-yet-undetermined risk-assessment processes in lieu of cash bail. Those changes led to the ACLU withdrawing support for the bill, saying it didn't go far enough.

In a statement, ACLU's Natasha Minsker said: "Any model must include data collection that allows independent analysis to identify racial bias in the system, supports the use of independent pretrial service agencies recognized as the best practice in pretrial justice, and ensures stronger due process protections for all Californians, no matter where they live."

The bill had been strongly opposed — for different reasons — by the bail bond industry and some law enforcement groups, like the California Police Chiefs Association and California Peace Officers Association, which argue local police departments don't have the time or resources to look for people who don't show up for court. They also argue the specifics of the bill call for too many people to be released before their trials.

Effort 2: California Supreme Court

The California Supreme Court will be hearing a San Francisco case that calls the commercial bail system into question.

It concerns 64-year-old Kenneth Humphrey, who was accused of stealing cologne from a neighbor.

Bail was set at $600,000 (later reduced to $350,000), which Humphrey couldn't afford.

He spent a year in jail before an appeals court released him, saying his bail was excessive and unfair, and that poverty can't be grounds for pretrial imprisonment.

The state supreme court is expected to review that case in the coming months.

UPDATES:

Aug. 28: This story updated with the signing of the bill by Gov. Brown and additional background on it's path to that point.


KPCC/LAist is investigating the justice system in Southern California. We want to deepen our coverage and your insight can help, whether you've faced charges, you have a relative or friend who's been incarcerated, or you're a prosecutor, public defender or someone else who works within the criminal justice system. We'll read every submission, but nothing is shared without your permission.