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Senate Bill 10 - Initial Observations about Bail Elimination Bill

Today, in a landmark vote, California became the first state to eliminate completely a cash based bail system. No doubt this is a blow to bail bondsmen throughout the State, many of whom are friends, who have provided freedom for thousands who could not normally afford the cost of bail. My thoughts are with them.

That said, as it is with any new legislation the proof will be in the pudding. My inital reactions as a defense attorney is that of cautious optimism. Previously all bail had been set entirely on a dollar based bail schedule. In almost all cases the bail that was monetarily scheduled for the offenses you were charged with governed unless a Judge found a change in circumstances that would allow them to deviate from the bail schedule.

True, Judges did have the authority to deviate from the monetary schedule, but all too often would not do so. Clearly, this will have a chilling affect on Prosecutors who habitually stack charges, many of which they might not have the ability to win in trial, just to be able to raise bail to a point where the defendant would never be able to get out of custody due to the schedule of the offenses they would add to a given case.

On the other hand, the new law seems to give even more power to Judges to determine who does and does not get out of custody. While many people were unfairly jailed and forced to fight their cases from behind bars due to financial inequities, there are those who could make bail and therefore have the opportunity to aid their attorneys in their defense from outside of the confiines of jail. The law could cut both ways.

In the end, however, this is a tremendous move in the right direction and also has an enormous impact on an individuals right to the counsel of his choice. Many times my clients are faced with having to make the choice of paying their exorbinant bail in order to sleep in their own bed, or use those funds to hire the attorney of their choice. Many of these folks often plead guilty to charges they may not have committed just to get out of custody.

Check back here often for developments on how this new bill, SB 10, will work in practice.