American Bail Coalition Statement on California A.B. 329, S.B. 262 (2021 session)

We believe the legislation is unfortunately unconstitutional in several respects.

One, the California Constitution clearly contemplates that only judges will have the power to set bail.  These bills would set bail at $0 by legislative edict, and would provide no discretion for judges to depart when they believed bail was necessary.  This violates the California Constitution specifically in several parts, and it is also a legally questionable exercise of legislative power to over- rule judges before they have even ruled.

Two, the basis to discriminate against defendants (those who get a $0 bail and those who don’t) is based solely on the charge lodged by a prosecutor.  Studies for a generation have made it clear that the charge alone is no indicator of pretrial risk.  As a result defendants who do have to post bail will be able to successfully challenge the fact that the basis for discrimination violates the equal protection clause because the basis to discriminate is unsupported by mountains of research and lacks a rational basis.

Third, California is a “sufficient sureties” state, also known as a right to bail state.  California is one of 39 such states.  The California Constitution affirmatively confers on all defendants the right to have a bail set by a judge that is deemed “sufficient sureties” that they then may post to be released from jail.  Preventing defendants from getting bail and steering them to pretrial supervision as an alternative will, in many cases, be more restrictive of their liberty than obtaining the right to money bail, and in most instances having a third party post that bond for them.  Defendants will be able to successfully challenge the denial of bail in cases where it would be less restrictive than other conditions of release, like house arrest, drug screenings, and other intrusive correctional technologies.