Source: Jeffrey J. Clayton

California’s state lawmakers recently failed to pass bail reform legislation, creating a case study in how fundamentally poor public policy will self-destruct if it’s exposed for what it is. On the face of it, there is a logic to the continuing argument that cash-based bail is unfair to people who have little or no money. But that simple premise is deeply flawed and has led to a huge increase in violent crime in California, as well as in other places that implemented the policy. Unfortunately, the grim repercussions are not just statistical. There is a human face to criminal justice reform gone bad—and ultimately it tripped up the legislators behind the latest attempt at force-feeding bail reform to the Golden State’s citizens.

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Even the staunchest bail reform advocates were compelled to take a step back after the horrific events of September 6. In Sacramento, Troy Davis, a convicted felon, broke into 61-year-old Kate Tibbitts’s home, raped and murdered her, slaughtered her two dogs, and then set the house ablaze. The night before, Davis had exposed himself on a neighbor’s porch.

When it emerged that Davis had been released on zero bails, the impetus for a bail reform bill that was steamrolling its way through the California Senate immediately screeched to a halt. But is that the end of the story or is there another domino waiting to fall?

In 2020, as an emergency measure during the COVID-19 pandemic, the California Judicial Council, hoping to prevent COVID’s spread, had implemented zero-bail schedules to reduce jail populations. Senate Bill 262 was later introduced in another of a series of attempts to eliminate most monetary bail. For reasons having nothing to do with protecting health and safety, Senate Bill 262 would have made the schedules permanent. In effect, if defendants could not afford bail, they would simply be released.

The grim reality of zero-bail policies became increasingly apparent as late summer turned to fall. Dramatic expansions in crime. Rampant retail theft. Law enforcement and prosecutors unified in their complaint that the zero-bail schedule was a problem. A big problem. In fact, the Judicial Council had terminated the zero-bail schedule order even before its emergency authority expired, presumably because these policies failed. Troy Davis’s rape and murder of Kate Tibbitts was the final straw in Sacramento, at least for Senate Bill 262.

Even as the importance of bail in the criminal justice system is being recognized, the careful balance that it creates between defendants and the public (including victims of crime) has grown more precarious. For example, retail criminals are now organized and increasingly brazen. A mayor in a California city could order police to go on an old west-style round-up of these lawbreakers, who would then immediately walk free out of jail…only to go out and do it again.

Image: Empty ball and chain. Piqsels.

Sacramento County District Attorney Anne Marie Schubert laid the blame for Davis’s heinous acts squarely on California’s bail policies. She indicated that zero bail was misapplied in his case, as parolees should not have been eligible for free release. But she also cautioned that the right to an affordable bail, as stipulated in Senate Bill 262, would have set Davis free pending trial no matter what.

The reality is that Senate Bill 262 aside, the pendulum has swung so far over the years that no single bill can fix the fundamental problems with criminal justice in California and restore law and order to a point where citizens feel safe and protected.

My dad was a career cop. He always told me that, in the old days, there were two things you never wanted to do: get arrested or go to jail. Usually, a few nights or a week in jail was enough to make the point—and it kept the peace. The idea of strong “prosecution” or “collateral consequences” was not on anyone’s mind. Today, there is no peace to be kept because the presumption of innocence when dealing with repeat criminal defendants pretrial, has been extended far beyond any definition of reasonableness.

In a 2016 report that criminologist Daniel S. Nagin wrote and the U.S. Department of Justice issued, Nagin concluded, “Research shows clearly that the chance of being caught is a vastly more effective deterrent than even draconian punishment.” He added that law enforcement has an increased ability to deter crime when it does things that “strengthen a criminal’s perception of the certainty of being caught.” Zero-bail for a list of crimes in fact does quite the opposite—it strengthens the perception of getting away with it.

The reality is that judges in California—whom voters elect—have always been prepared to handle bail without political meddling. Rather than interfering in areas outside of their authority, legislators must turn their attention to speedy trial reform, along with deterring and punishing repeat offenders. Meaningful criminal justice reform is a noble and just cause, and reasonable minds should work together to improve the system.

While there may be disagreements about the right path to take, it should never be lost on decision-makers that the debates are not just about concepts, but about all the human beings involved—both the defendants and our citizens. When bad public policy harms real people, it’s time to put political rhetoric and agendas aside. Kate Tibbitts deserved better, as do all Californians.

Jeffrey J. Clayton is the Executive Director of the American Bail Coalition. He has worked as a public policy and government relations professional, and also as a licensed attorney, serving a variety of clients in legal, legislative, and policy matters. Mr. Clayton also worked in government service, representing the Colorado Judicial Branch and State Labor Department, and the U.S. Department of Transportation. He is also a prior Presidential Management Fellow and Finalist for the U.S. Supreme Court fellows program. Mr. Clayton holds a B.B.A. from Baylor University, an M.S. in Public Policy from the University of Rochester, N.Y., and a J.D. from the Sturm College of Law, University of Denver.