NEW CALIFORNIA BAIL LEGISLATION DESTROYS PRESUMPTION OF INNOCENCE

The presumption of innocence, as the U.S. Supreme Court has said, is axiomatic in our criminal justice system. Yet, if it has its way, the California Legislature would destroy this core concept through the passage of Senate Bill 262. The bill would eliminate the constitutional right to bail in the state and cause irreparable harm to the truly innocent, while allowing defendants who are guilty to be set free.

California voters already rejected Proposition 25 in the last election. Instead, they opted to allow individuals to have access to bail and give them the opportunity to be released from jail pending trial. Defendants are also held accountable for their actions and know that if they flee from justice they will be returned to face the consequences.

Despite this fact, state lawmakers seem intent on going against the will of the people, as they continue their crusade to “end cash bail” through Senate Bill 262. This ill-conceived piece of legislation would also return us to the pandemic zero-bail process, which will further erode public safety in California.

Still, the most worrisome part of Senate Bill 262 is what it does to the presumption of innocence. It creates economic incentives in the bail system that make sure only the guilty or those that will flee from justice will receive access to bail. How? Under the bill, bail agents who post bonds for defendants will have to offer a premium refund if: (1) no charges are filed within 60 days of arrest; (2) the defendant appears; or, (3) the charges are dismissed.

In practice, this is going to mean that only those who are actually innocent will suffer. Often times a defendant will have proof beyond a reasonable doubt that they did not commit the crime with which they’ve been charged. A bail agent would not be able to post a bond for these individuals because it would trigger a refund. On the other hand, if a defendant confesses guilt to the bail agent, then two of the three refund provisions evaporate, thus making it more likely the guilty will get out of jail.

For appearances in court, we have the same problem. If a defendant is going to appear, bond cannot be posted and the individual must remain in jail. Incredibly, if a defendant never shows up for court, he or she would be considered a better risk under this scheme.

Presciently, Supreme Court Justice Thurgood Marshall once said that the shortcuts we take with the guilty only harm the innocent and, ultimately, ourselves. Making sure that all persons charged with a crime have the presumption of innocence protected is critical. Every time we make a mistake and treat someone as guilty when they are presumed innocent, we contribute to the destruction of the rule of law and our system of justice.

If one were to take a surface-level look at the situation presently facing society, it might be easy to ask why should defendants who are ultimately wrongfully arrested and charged with a crime be forced to eat the cost of their freedom? The issue here is the desire for some to cast blame and bail has served as a convenient scapegoat for years. However, bail is not the cause of the problem. Rather, it exists solely for the purpose of getting people out of jail. If anything, the problem lies with the criminal justice system itself in California. But no one in authority will admit to that because the state allows jurisdictions to invoke sovereign immunity and not have to worry about paying anyone back. The truth is, those who are over-arresting the innocent should be held financial culpable, not those working to help them avoid pretrial detention for crimes they did not commit.

Senate Bill 262 completely flips the presumption of innocence on its head and destroys it in California for all time. If it passes, the guilty will go free and the innocent will rot in our state’s jails. Ultimately, it comes down to an inarguable truth. Regardless of zero bail or affordable bail, pretrial freedom should never hinge on the guilt or innocence of a defendant that has yet to be decided.

Original article by Gloria Mitchell, President of the California Bail Agents Association and posted by California Political Review, 7/9/21