Six Year Effort to End Cash Bail in California Finally Ends in Resounding Legislative Defeat

By ignoring sensible and obvious solutions to the problem within the framework of Article 12 of the California State Constitution’s right to bail, the legislature just kept grasping at potential alternatives to the monetary bail system, none of which proved either workable or acceptable to California’s diverse population of voters - Jeff Clayton, American Bail Coalition

“End money bail” have said the proponents of legislation in California on bail reform over the last six years.  Despite not ever really having a plausible alternative to bail, the proponents of the end money bail system have marched on with four different attempts to end money bail in California, all of which were defeated over the course of the last six years, with the latest having occurred at roughly 11:55 pm on the evening of August 31, 2022.  Californians ultimately sent a clear message to Sacramento: don’t mess with bail.

End cash bail defeat #1: Assembly Bill 42 (2016-17)

This all began in 2016 with conversations among the judiciary, law enforcement, legislators, advocates, and others with the idea that it was time to jump on the national bandwagon to end money bail due to the alleged fundamental unfairness of cash bail. From those conversations were born two things: Assembly Bill 42, the bail reform legislation introduced in 2017, and the Kenneth Humphrey case, a case which would ultimately go to the California Supreme Court under the simple idea of – if I can’t afford my bail, I get out anyway.

On June 2, 2017, despite an overwhelming Democratic majority in the Assembly, AB 42 only received 35 of 80 votes, well short of the 41 votes need to pass legislation.

End cash bail defeat #2: Senate Bill 10 (2018-2020)

In 2018, the second iteration of the end cash bail system occurred: a so-called mushroom bill occurred in the waning hours of the California legislative session in August, where California’s 150-year history of bail was rewritten in a mere three days.  Senate Bill 10, which contained the previously defeated language from AB 42, was quickly amended, and thus the zero-money bail system was reborn.  The legislation quickly passed, and the proponents proclaimed an end to cash bail, despite the clear fact that a constitutional change is required to do that in California like in most states.  All three branches of government in fact rallied behind SB 10.

And so, the second phase of the second attempt began—over 650,000 signatures were gathered from the public in less than 90 days, and SB 10 was placed on hold.  Voters would thus ultimately decide whether to end cash bail or not in the general election of November 2020.  The result – 9,358,226 voters (56.41%) overwhelmingly decided that they did not want to go to the no money bail system, rejecting Senate Bill 10.  Californians had been heard and the debate was over on ending cash bail…or so we thought.

End cash bail defeat #3: Senate Bill 262, Zero Bail (2021)

Senate Bill 262 was then introduced a mere 7 weeks after the election in January 2021, this time to implement the zero-bail system implemented by the Judicial Council during the course of the pandemic.  Of course, this zero-bail system has come under widespread criticism, with one data set showing a 70% new crime rate for defendants out on zero-bail.  And so, the fight over zero-bail began anew, this time for the third time.

This third iteration of ending cash bail was a nine-month journey as crime increased, and the results from the Judicial Council’s zero-bail policy did not at all prove favorable.  And thus, the proponents pivoted again in September of 2021, this time jettisoning the specific Judicial Council’s zero-bail and coming up with the right to an affordable bail, one where everyone gets out on stated-income bail, most of which as it turns out will be zero-bail.  But then, in the wake of a tragic killing of a person caused in part by the zero-bail policy, the legislature put SB 262 in the inactive file, where it sat for quite some time.

In the meantime, the California Supreme Court announced the Humphrey decision, which stands for the proposition that there is no absolute right to an affordable bail but instead, like many other courts have held, a right to meaningful expedited due process to make sure that people are not being held solely because they cannot afford it.  So, one thought, it must be over now—we fixed this problem that was the impetus for all of these bills, the public doesn’t want zero-bail, and so that should be the end of it.

End cash bail defeat #4: Senate Bill 262, Right to Affordable Bail (2022)

Not so!  The fourth time as it turns out was the charm—the end of six years of bail reform.  Again, zero-bail legislation in the form of the right to an affordable bail was put on the active bill file with a week to go in the session.  After more fallout from the zero-bail language, the proponents once against tried to amend it at the eleventh hour on the Assembly floor.  Of course, the right to an affordable bail would clearly have over-ruled the California’s Supreme Court’s decision in Humphrey.

SB 262 was the last bill to be debated before midnight and the legislation barely garnered a majority of Democrats, receiving 32 votes in favor in a caucus of 60 democrats in an assembly of 80 members.  The legislation fell nine votes of short of gaining a majority, and was resoundingly defeated, this time by a margin three votes greater than that of the defeat of AB 42.

“By ignoring sensible and obvious solutions to the problem within the framework of Article 12 of the California State Constitution’s right to bail, the legislature just kept grasping at potential alternatives to the monetary bail system, none of which proved either workable or acceptable to California’s diverse population of voters,” said Jeff Clayton, the Executive Director of the American Bail Coalition.  “It is clear that this six-year chapter in the end money bail movement in California is now over.  The American Bail Coalition, our members, and the bail agents from around the country we serve are extremely proud to have stood with Californians over the last six years to defend their fundamental constitutional right to bail.  There is one thing that we want to make clear: we will absolutely continue to completely and vigorously defend the constitutional right to bail against any and all such attacks in the future, whether in California or anywhere else."