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Barring changes, the state's cash bail system has been repealed and the new system will take effect in October 2019. We're the first state to do this - and this is going to be interesting.

Current system (Cash bail): Get charged with a crime, and you have to pay money to get out of jail based on the crime charged and enhancements based on a bail schedule which lists the amounts of bail. Sometimes, you can get out for less or no money, and sometimes the judge will set bail higher than the schedule. Bail bond companies will post it for you if you pay them a percentage, which you won't get back.

New system: There's a public safety risk assessment. If you're high risk, you stay in. If you're low risk, you get out. If you're medium risk, there may be conditions placed on getting out. 

There are advantages and disadvantages to the current system. Reformers have long said that the system treats the rich and poor differently and sometimes poor people are in jail for no particularly good reason - and they are right! 

The new law, passed as Senate Bill 10, creates a new government program to assess risk based on prior attendance at court, probation status, and the crime charged.

Prosecutors and defense attorneys can set hearings to challenge or change their assessments. This will cost some taxpayer money. If it keeps the right people in jail and lets low-risk people out, it will be worth it. 

There are advantages to cash bail in serious cases - if the bail company is out $125,000, they get very motivated about finding the bail-skipper. Private enterprise can be more responsive than government sometimes. 

But setting bail on those who are charged with minor crimes and who are not a risk to flee is essentially a further tax on people charged with crimes. 

I would have preferred a smaller change, but I think this will not sacrifice safety.

There's one more question: Is the new bail system valid under the United States Constitution? It clearly is for serious felonies - the federal government did a smaller bail reform measure in the 1980's that permits holding people without bail for serious crimes. While the Eighth Amendment forbids excessive bail, it does permit no-bail holds when the safety of the community cannot be assured.

However, in cases in which appearance is the primary issue and the defendant poses no substantial safety risk, the calculation may be different. As a practical matter, the bail that is set for people who repeatedly no-show is high enough to keep them in, so it may be that this will hold up in the courts. Like any major change, litigation is coming. 

In the end, the state is doing an experiment. The bill was changed from earlier versions, which were frightening and would have endangered society. This bill protects the rights of the defendants and society. 

It will be a question of proper execution. Everyone, including local prosecutors, will have to be diligent in making sure the public safety goals are met. I will make sure we are very attentive to who should and shouldn't be in jail. 


Mayne for District Attorney 2018
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