BY | June 4, 2025

California's bail system is flawed because some defendants remain in pretrial detention even though they are eligible for bail, because they cannot afford the required amount. As a result, bail laws have undergone a series of reforms and updates intended to create fairness by minimizing the impact of cash bail on low-income earners. Many of the reforms have lowered bail figures for defendants required to exit jail, established alternative release procedures, and discouraged judges from setting hefty bail amounts that defendants cannot afford unless they pose a security threat to the public or are a flight risk.

California Bail Reform History

Prior to the 1966 Bail Reform Act, the U.S. relied on bail statutes based on English law, which adopted the legal doctrine of innocent until proven guilty. Unless you were a capital offender and your crime was punishable by a death sentence, you were eligible for pretrial release pending trial.

States began to adopt the English law on bail after independence, with Virginia adopting a bail law requiring defendants whose offenses are not punishable by limb or death to be granted bail in 1776.

In 1789, the Judiciary Act prescribed in detail the offenses that were eligible for bail and set limits or guidelines for bail setting, giving judges the discretion on whether to grant bail to capital offenders depending on the case’s circumstances.

However, after the reforms, judges began to keep non-capital offenders in pretrial detention by imposing colossal bail figures. Setting bail higher than a defendant can afford is like denying someone bail. This led to the birth of the Eighth Amendment, which forbids excessive bail.

The 1966 Bail Reform Act aimed at improving the American bail system. After the reforms, non-capital offenders were entitled to pretrial release through cash bail or a bail bonds service. Also, it required judges to consider the defendant’s risk of skipping town after release on bail. Unfortunately, the Act allowed judges to grant bail to eligible capital offenders, which threatened public safety. So, in 1984, the Act was repealed and replaced with the Bail Reform Act of 1984, which allowed judges to detain defendants they deemed to pose a danger to the community. Other additional changes brought by the Act denied bail to:

• Defendants charged with violent crimes punishable by at least ten years of confinement

• Capital offenders

• Defendants charged with drug-related offenses that carry at least ten years of confinement

• Repeat offenders

• Defendants interfering with witnesses or obstructing justice

• Defendants deemed as flight risks

However, before bail denial, the defendants had to undergo a pretrial proceeding to determine if these grounds for denying bail existed in their cases.

California did not experience any significant bail law changes. The first issue of California bail reform was raised in 2017 after a defendant known as Kenneth Humphrey, aged 63, was unable to raise $600,000 bail set by the court after robbing a neighbor who was a senior citizen of $7 and a cologne. The court, through a bail hearing, agreed to reduce bail to $350,000. Still, the defendant could not afford the 10% deposit required by bail bondsmen to finance pretrial release. So, the defendant remained in pretrial detention for twelve months, which raised public outcry, leading to the push for California bail reforms.

Later, the California First District Appeals Court ruled that arriving at a hefty bail figure higher than what a defendant can afford amounts to bail denial and that a judge can only deny a defendant bail if they are a danger to the public or will likely flee town after release. The court ruled that Kenneth from San Francisco was not a flight risk or a threat to society; hence, he was not required to be detained without bail. The court released the defendant on the condition that he wear an electronic monitoring device and enroll in and complete an alcohol and substance treatment program. The decision by the court on this case found its way to the Supreme Court to make its findings on the legality of money bail.

Later on in 2017, when addressing the California lawmakers, Chief Justice Tani-Cantil-Sakauye raised the issue of unfair pretrial detention because of the unaffordability of bail. She stated that there was a need to find a solution to the matter. This led to the establishment of the Pretrial Detention Working Group, whose findings showed that the existing bail system was flawed as it was based on the defendant’s capacity to consolidate bail and disregarded factors like criminal record, flight risk, and danger to the community.

New California Bail Laws

In 2018, the California legislature passed Senate Bill (SB 10), intended to repeal the existing California bail laws. The bill would allow the state to shift from the primarily cash-based bail policy to a risk-based system during bail determination. Any reference to bail would have been in accordance with provisions under SB 10.

The bail law changes required that, after arrest and detention in police custody, a suspect would be subjected to pretrial risk evaluation done by the Pretrial Assessment Service, an entity established by the 2017 Act to evaluate defendants’ risk levels and report the results of the assessments. The entity would also be mandated to make recommendations to the court on pretrial release terms based on the assessment. The new California bail laws would require the court to create an entity to conduct the assessment, and the risk evaluation would be done by court workers or a contracted public organization. If no local public agency wanted to conduct the evaluation and the court was not ready to perform the evaluation, the judge or magistrate would find a new agency for the role.

Under the new California bail laws, a defendant in custody for a misdemeanor offense would be processed and released without the need for a pretrial risk evaluation unless specified otherwise. Also, the assessing agency would release a defendant charged with a misdemeanor on OR within 12 hours if they are deemed a low risk. The misdemeanor offenses that would be exempted from the rule are those related to:

• Sexual crimes

• Stalking

• At least three warrants issued within ten years for skipping court

• DUI offenses like DUI with injuries, DUI with excessive BAC of .20%, or third DUI in 120 months

• Prior violent felonies in 60 months

• Post-sentencing parole or probation

• Restraining orders within five years

• Violation of pretrial release terms within five years

• Domestic violence

A misdemeanor charge under these circumstances would not qualify for an OR release under the California bail reforms. Even if you do not qualify for an OR release, the court would release you under certain terms like:

• Wearing an ankle monitor

• Regular appointments with the pretrial supervisor

• Community shelter

• Drug or alcohol treatment

Additionally, the California bail reforms would allow the superior court to authorize the entity conducting pretrial assessment to release defendants deemed as medium risk on OR. The reforms would bar the assessing agency from releasing defendants who meet certain conditions. If a defendant is not released after pretrial assessment, the court would conduct a pre arraignment evaluation before releasing the individual. However, a defendant would be detained awaiting arraignment if there is no reasonable possibility that the court could guarantee the defendant will not threaten public safety or skip court.

SB 10 would also impose a condition requiring the victim of a crime to be informed of the scheduled arraignment hearing so that they can appear and testify regarding the defendant’s custody. These conditions would impose additional responsibilities on prosecutors and establish a presumption that a defendant could be released by the court on OR with less restrictive non monetary terms that guarantee public safety and the defendant’s future court appearances.

With the California bail reforms, the DA would submit a motion for pretrial detention of the defendant under special circumstances. If the court ruled that the defendant would likely violate pretrial release terms, the judge could continue detaining the defendant awaiting a preventive detention proceeding, although they had to state the reasons for the continued detention. The bill would bar the court from imposing monetary conditions.

The hearing under the bill would happen in three court days after the motion submission. In the proceeding, the defendant would be entitled to lawyer up. If they cannot afford a private attorney, the court will appoint a public defender on their behalf.

Under the bail law changes, the prosecutor would inform the defendant of the scheduled preventive detention proceeding. In the hearing, the DA would create a presumption that there is no pretrial release condition that would reasonably guarantee that the defendant would not threaten public safety, particularly when the defendant has been charged with a serious or violent felony within the last 60 months. It would have been up to the defendant’s attorney to present facts in mitigation to compel the court to conclude that there is insufficient proof to continue detaining the defendant, leading to an OR release with no monetary terms.

SB 10 was intended to repeal the existing bail statutes on October 1, 2019 but the implementation was delayed due to the referendum scheduled for 2020. Unfortunately, even after the legislature passed the bill in 2018, it was overturned by the California voters in 2020 through a referendum when they voted against Proposition 25, repealing SB 10, which was yet to be enacted after passage.

The bail law changes were heavily rejected by bail bonds companies, as the new California bail laws would have brought down the bail bond industry, which posts bonds for defendants who cannot afford bail to prevent pretrial detention, but at a fee, usually 10% of the total bail. If the bill had been passed by the voters, turning bail into a risk-based system instead of a cash system, defendants would not have had to meet monetary requirements, which would have been bad for bail bondsmen. So, they campaigned against the California bail reform.

Other Updates and California Bail Reforms

While bail law changes have not been successful, especially after the rejection of Prop 25, which contained many California bail reforms, there have been notable changes intended to transform the flawed system. Judges nowadays rely on the risk assessment concepts captured in the new California bail laws to assess the arrestee’s risk of skipping court or threatening public safety.

Again, in 2023, Los Angeles County adopted the “No Cash Bail” system or policy, eliminating the need for bail for individuals in pretrial detention for misdemeanor offenses or particular non-violent felonies. However, the new California bail laws have attracted a lot of criticism, as they are considered to threaten public safety.

The Current California Bail System

Several attempts have been made to reform the bail system that primarily operates on cash, as defendants eligible for bail must deposit money or its equivalent to leave pretrial detention. The existing statutes provide procedures for bail approval and acceptance. The law provides a predetermined bail amount in county bail schedules for various offenses but gives the judge, magistrate, or commissioner discretion to increase or reduce the amount or deny bail entirely based on the case’s facts. The factors they consider include

• Public protection

• Severity of the charges

• The defendant’s prior criminal record

• Chances of the defendant showing up for scheduled court proceedings

The commissioner or judge handling the bail application has the authority to set the bail they deem reasonable based on the circumstances to guarantee the defendant’s future court appearances and safeguard domestic violence victims. Additionally, the court imposes bail terms it deems appropriate based on the case’s facts or authorizes a release on own recognizance (OR). The law allowed for defendants detained for misdemeanors to be entitled to OR release unless the judge discovered from the records that granting the release would threaten public safety or not sufficiently guarantee future court appearances.

Find a Competent Bail Bonds Company Near Me

Despite the ongoing debates on California bail reform and bail law changes, little has changed. Therefore, even if bail is higher than you can afford, do not be discouraged because you have options you can explore, including bail bonds, where you hire a bail bondsman to deposit bail on your behalf at a fraction of the total bail. These services are efficient and affordable when seeking pretrial release. At Alana’s Bail Bonds, we can make your pretrial release affordable and effective despite the financial challenges. Call us at 619-468-9333 to start preparations for release.