Testimony: Bail and Pretrial Detention
The Alameda County Board of Supervisors Public Protection Committee, along with Assemblymember Bill Quirk, chair of the assembly Public Safety Committee, held a special hearing on the bail system on Friday, February 19, 2016, in Hayward. They invited Sonya Tafoya, PPIC research associate, to testify about the impact of bail on the jail system in California. Here are her prepared remarks:
The purpose of California’s bail system is to ensure that defendants appear in court and to protect public safety (Cal Const. art I § 28(f)(3)). With the exception of capital crimes and certain felony offenses, bail is a right for most offenders (Cal Const. art I § 12, PC § 1271). If the court finds that defendants do not pose a risk of flight or a risk to public safety, it has the discretion to release them on their own recognizance.
The most comprehensive data source available, the State Court Processing Statistics (SCPS), indicates that for felony offenses, California’s large urban counties have had high rates of pretrial detention (59%) relative to the rest of the United States (32%). Some of this difference can be attributed to California’s high bail amounts. California’s median bail amount was $50,000, five times higher than the rest of the United States. Yet, even with relatively high rates of detention, California has had higher failure-to-appear rates (6.6% versus 2.9%), and higher rates of non-violent felony rearrests (12.4% versus 10.1%) than the rest of the United States. Re-arrests for violent felonies are only half a percentage point lower in California (1.4%) than the rest of the United States (1.9%) (Tafoya, 2015).
It should be noted that data collection for the SCPS was discontinued in 2009, and in the absence of more recent SCPS or other statewide data, we cannot determine whether these rates of detention, failure to appear, and re-arrest have persisted. The effect of Proposition 47 on median bail amounts is also unknown. But, as a practical matter, these results suggest that California has not gotten a very good return on its investment in high pretrial detention rates.
Jail Capacity Overview
A brief overview of jail capacity in California helps quantify the scope of this issue.
- The average daily population of California jails was about 73,000 (2nd quarter, 2015, Board of State and Community Corrections). Most jail inmates (46,000) are unsentenced; the remaining 27,000 are sentenced.
- California’s jails hold mostly those charged with or convicted of felony offenses (84%).
- California’s jail system as a whole is operating near its rated capacity of about 80,000 (Board of State and Community Corrections, April 2015). Overall, the system is operating at about 91 percent of rated capacity.
- The extent of jail overcrowding varies across counties; 37 facilities in 19 counties are operating under court-ordered population caps.
- Facilities with population caps are required to release inmates when their populations reach a specified threshold (often 90% of rated capacity). In the 12 months following realignment, these facilities averaged about 12,000 capacity releases a month. In the wake of Proposition 47, the average has declined to about 10,000 per month.
Demands for lower bail amounts are generally based on assertions that low-risk defendants are being held in jail solely because they lack the financial means to post bail. Lowering bail across the board would increase California’s rate of pretrial release (Tafoya, 2013). From a public safety perspective, however, this may not be the most prudent approach. A county jail population assessment would be a straightforward first step toward understanding the resources that are being devoted to detaining low-risk defendants. The assessment takes a snapshot of the jail population at a point in time and describes who is being held in jail, for how long and and why. It examines such factors as demographics, current offense, criminal history, status as a sentenced or unsentenced inmate, immigration or other agency holds, bail amounts, and length of incarceration.