Fixing the Bail System in California

Picture of Attorney Thomas Nicholas Cvietkovich

The average bail for criminal defendants in California is $50,000 – five times higher than the national average. The bail system is meant to create an incentive for defendants to return to court and make it more difficult for potentially dangerous defendants to leave jail. After a defendant posts bail, he or she will be reimbursed if the case is dropped or results in a verdict of not guilty. Most defendants use bail bonds, in which a bondsman pays the bail in exchange for a fee. However, bail reform advocates say that the system disproportionately punishes low-income defendants. The likelihood of leaving jail after criminal charges is more dependent upon the defendant being able to afford bail than the risk he or she poses. As a result, California jails are overcrowded with people who are awaiting trial but have not paid their bail.


Bail schedules determine the assigned bail for each criminal charge, but the bail amount for the same charge can vary by county. Some California county courts are trying to combat jail overcrowding by lessening or eliminating bail for some defendants. Proposed state legislation would fundamentally change the bail system for all California courts. The bill would eliminate the county bail schedules and instead determine the need to jail a defendant based on his or her:

  • Risk of not attending future court hearings; and
  • Danger to others.

The bill would require counties to create formal risk assessment processes to be used on people charged with non-violent felonies. Most people charged with misdemeanors would be immediately released, except for charges such as domestic violence. When determining bail, the judge would be instructed to set the lowest amount needed to ensure the defendant will return to court.


Proponents of the bill say it would prevent unnecessary jail time for defendants who pose no threat to others and will likely attend scheduled court dates. The defendants would return to their regular lives, and local governments would save on the expense of housing them in the jail. However, opponents say the proposed reforms would be too lenient on some defendants. Implementing the defendant review systems would also be costly for local governments. Instead of such broad changes, they believe that the bail system can be fixed by reducing bail amounts.

Reform Movement

Several states have already implemented or are trying to implement bail reforms that are similar to what California is considering. As a defendant, your financial resources should not be the determining factor in whether you can leave jail. Extended jail time is effectively punishing you without being convicted. A San Jose criminal defense attorney can argue against excessive bail in your case. To schedule a free consultation, call (408) 898-9653.


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