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A constitutional criminal defense starts with a fair bail system

Some criminal law experts argue that the California bail system is not functioning according to appropriate constitutional standards. The current law tends to fill the prisons with people who have not been proved guilty and who are supposed to be protected by the cloak of innocence. It also discriminates against those who cannot raise the cash required by the courts. A good criminal defense attorney can help the defendant to seek a lower bail amount, but a long-term solution to the problem will come from other sources.

A recent California appellate case points out that lower courts must consider someone's income and capacity to pay before setting a bail amount. The case questions whether the current practice of largely ignoring such factors provides for a constitutional bail system. The most direct path to reform, however, lies in legislative action.

Currently, Senate Bill 10 has already been passed by the Senate. The statute would replace the outmoded cash bail system with one that emphasizes the major factor of community safety. Currently, money is the deciding factor. That results in releasing more violent and criminal mentalities and keeping in prison a higher number of low-level offenders who would present no threat if allowed pre-trial release. Another failure in the bail system is that California's average bail, which is $50,000, is five times higher than the national average.

Studies prove that keeping low-level offenders in prison due to lack of funds increases their resentment and prospects to re-offend. Keeping someone behind bars who is a low-risk for re-offending is also counterproductive. It will tend to cause loss of the accused person's job and loss of housing for both the accused and his or her family. SB 10 allows the court the discretion to hold someone without bail if it determines that the person is a risk to public safety. If the bill passes, criminal defense attorneys will be able to seek freedom for accused persons in California on a fairer and more objective platform that will stress danger to society instead of monetary ability. 

Source:, "Why bail reform will make California communities safer", Ron Davis, March 1, 2018

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1322 Morro Street
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