Bill to Allow No Cash Bail
July 15, 2021
A logical opinion by Corva Corvax
A law that would grant nearly all (if not all) criminal defendants the right to walk out of jail without bail is now sitting in the Public Safety Committee of the California State Assembly after passing the State Senate with a 30-9 vote. Should the bill, SB 262, get passed by the Assembly, it will be nearly (if not completely) impossible to hold any offender in jail, no matter what crime they are accused of committing.
The proposed law would require bail to be set at $0 for all offenses except some serious felonies. However, even for the serious felonies, the judge is ordered to consider the ability of the defendant to afford whatever bail is set. No bail may be set beyond a defendant's ability to pay.
In other words, even those accused of very serious crimes - murder, assault with a deadly weapon, rape, kidnapping - would in effect be released from jail prior to their trials.
SB 262 would overturn the result of Proposition 25, in which voters decided at 56.41% to keep cash bail.
But can't a judge hold a defendant without bail if he is deemed a danger to the public?
The California Constitution does provide a judge with the discretion to deny bail for "Felony offenses involving acts of violence on another person, or felony sexual assault offenses on another person, when the facts are evident or the presumption great and the court finds based upon clear and convincing evidence that there is substantial likelihood the person's release would result in great bodily harm to others."
It is unclear if SB 262 overrides this provision to deny bail. But even if it does not, the bar for denying bail is very high. There must be "clear and convincing evidence" that a defendant's release would result in nothing less than "great bodily harm." Great bodily harm means injuries requiring treatment at a hospital. Simply beating someone or slashing them with a knife does not rise to the level of "great bodily harm."