The 2021 California Supreme Court verdict changed the pretrial system significantly. The reform introduced the Humphrey hearing; the judge cannot detain you solely because of a lack of finances to post bail. Instead, the court must give defendants who cannot afford bail an individualized assessment based on factors like flight risk, public safety, and chances of returning to court to avoid pretrial detention because of lack of funds.

With the complexity of the bail system, you must act first to expedite the release of your loved one from jail. The process entails locating the defendant and establishing their booking number, determining the best pretrial release option by choosing between cash bail, bail bonds, property bonds, and seeking an own recognizance (OR) release, and actively invoking your right to bail review within five days if you cannot afford bail.

Finding the Arrestee and Establishing their Booking Number

California detains defendants in county jails or state correctional facilities. If your loved one is yet to be arraigned after a recent arrest, they will likely be detained in a county jail facility operated by the sheriff’s department. However, the detainees are moved to the corrections and rehabilitation department after conviction.

You can utilize the public inmate locator to find the defendant. However, you will need the following details about the detainee:

  • First and last name
  • Sex
  • Age or birth date

If the defendant had been booked and issued a booking number when they called you for help with bail, you can use it to expedite the process. If you do not have the booking number, contact Inmate Information Services to acquire the details.

California does not have a unified interface for searching pretrial detainees, meaning your search will depend on the county you are in. So, when using the inmate locator, you must use one for your specific county. Besides, searching on this interface might not give you immediate results, notably if the defendant was arrested and booked within the last 48 hours. It takes time before the detainee’s information can reflect on the locator. So, even if you search for your loved one’s name but no information appears, do not panic because it could be that the details are yet to be reflected.

After processing, defendants are typically allowed to make a few phone calls. Many call their family members or friends to make pretrial release arrangements. When you receive such a call, make the best of it and obtain all the arrest details, including the type of charges, jail location, booking number, and bail amount, to simplify the release process. However, if the details are unavailable, you can talk to a bail bondsman to help you obtain the information you need to process their temporary release pending case conclusion.

Establish the Pretrial Release Terms and Legal Conditions

The county bail schedule provides the financial and legal conditions for release. Bail schedules provide a predetermined bail amount for various felony and misdemeanor violations. You will find the details here if your loved one has violated the Penal Code, Health and Safety, and Vehicle Code. So, bail can vary from county to county even if the charges are the same. Additionally, judges can increase or reduce bail figures on the schedule, depending on the detainee’s status, such as a prior criminal record.

The Humphrey Hearing and the Detainee’s Capacity to Pay

In the recent Kenneth Humphrey case of 2021, the Supreme Court pronounced itself on the ongoing cash bail debate, reshaping the landscape of the pretrial system. The court recognized that the conventional cash bail system served the state’s interest by keeping defendants deemed flight risks, threats to public safety, and threats to the victim’s safety in pretrial detention.

Nevertheless, the reality is that many county bail schedules do not consider the fundamentals provided by law. The gravity of the charges determines bail in the schedules, the defendant’s criminal past, and many other factors. Many defendants end up in detention because of their economic status or inability to afford bail, and not because they are a flight risk or a threat to public safety. Precisely put, many pretrial detainees are in jail because they cannot afford bail and not because they are ineligible for pretrial freedom.

The Supreme Court pronounced that a lack of funds to post bail should not be the sole grounds for incarcerating defendants. Additionally, the prosecutor should furnish the judge with clear and convincing proof that releasing the defendant would jeopardize public safety.

Today, judges must hold a Humphrey hearing to evaluate cases individually, considering factors like the defendant’s capacity to afford the set bail amount. The purpose of doing this is to explore other pretrial alternatives that do not involve posting bail. With the ruling, the bail schedule only provides guidelines for bail. Unless you post bail before arraignment, court officials should not be bound by predetermined bail figures. Instead, they should study the case’s facts, the prosecutor’s arguments against bail, the defense team's arguments for bail, and the detainee’s criminal past to determine pretrial release options.

There are two levels of the pretrial system. The first provides the high predetermined bail figure in the local bail schedule. The other involves bail review hearings that come after an arraignment, when a defendant has been unable to post bail, to provide alternative ways of exiting detention to those who are eligible but do not have the money.

Challenges Implementing the Supreme Court’s Directives

Despite clear guidelines on how the court should address cases of defendants who cannot afford bail after arraignment, implementing the Supreme Court’s directives has been difficult. Studies conducted 18 months after the directive show that the number of pretrial detainees has not decreased, bail amounts remain high, and the duration of pretrial detention has not changed.

Despite the legal framework being clear on pretrial release, the impact is yet to be felt by defendants. This is because the Supreme Court only clarified the constitutional restrictions for bail applications. Some judges or court officials impose preventive detention on defendants considered flight risks or threats to public safety, even when, under the law, these offenses qualify for bail. Therefore, the efforts to protect the low-income earners from unjust pretrial detention have been turned into a tool to justify detention without bail while claiming to protect public safety and to avoid exploring release options that do not impose financial obligations on defendants.

Options for Posting Bail

Bail is a security, in money or property form, that defendants deposit with the relevant court for pretrial release. The financial obligation incentivizes the defendant to return to court as expected or risk losing the money or property.

You can post bail before arraignment using the presumptive figure on the bail schedule or after the court determines your bail.

When your bail is being decided in the arraignment hearing, your defense attorney can convince the judge to grant an OR release, where you simply promise to attend court later without making a financial commitment.

In other cases, the judge can deny you bail entirely, without the option to post bail. Nevertheless, many defendants qualify for bail or release without bail.

The common ways of posting bail are:

  1. Cash Bail

Cash bail entails posting the full financial obligation imposed by the court’s clerk or arresting a police agency upfront in exchange for pretrial release. Court policies vary, with some accepting cash, money order, cashier’s check, traveler’s check, or personal check. If the defendant attends court and complies with other conditions, your money will be refunded with fewer administrative fees sixty to ninety days after the case's conclusion. Conversely, when they fail to appear, you will forfeit or lose the cash to the court.

The major downside of cash bail is that when authorities suspect the funds were feloniously obtained, they can place them on a PEN 1275.1 hold. PEN 1275.1 states that if there is probable cause by the prosecutor, court, or law enforcement to believe that the bail funds were sourced from criminal activities, the court should not accept the bail. A hearing must allow the defendant to prove the money is legitimate before receiving the cash bail.

Authorities initiate the hold in drug crime offenses, felony grand theft, gang offenses, embezzlement, money laundering, and extortion.

When you deposit cash bail for a loved one and the hold is initiated, the release process is suspended, delaying your release. If this happens, the burden of proof shifts from the prosecutor to you, the third party posting the defendant’s bail, or the defendant. You must demonstrate that the money was not feloniously obtained.

It takes days to obtain the documents to show that your funds are legitimate. The documents include:

  • Pay stubs
  • Mortgage statements
  • Credit and debit card statements
  • Property deeds
  • An affidavit or sworn testimony from a third party if the cash bail was from a loan or a gift. The financial paperwork of the third party must be attached to their sworn testimony.

Once you have these documents, you can prove in the hearing with a preponderance of the evidence that the funds used for bail are legitimate. When you learn of the hold, contact your defense attorney immediately to mobilize the financial statements needed to prove your case. If you do not act fast and fail to get the required documents on time, you will not be prepared for the hearing, prolonging the defendant’s stay in custody.

Suspicious holds exist to ensure bail serves the purpose of ensuring defendants return to court after pretrial release. If one uses their hard-earned money to post cash bail, they are incentivized to attend court to prevent bail forfeiture. However, when the funds are unlawfully obtained, the defendant will have little or no incentive to return to court because they are not afraid to lose them.

  1. Property Bonds

When you have property you can use as collateral for the bail, you can allow the court to attach a lien or interest. That way, when you disregard pretrial release terms, the court can trigger a foreclosure proceeding on the property to recover the equivalent of bail. Property bonds are rarely utilized, as the appraisal or valuation process is lengthy. Proving ownership also takes time, leading to delayed release.

  1. Bail Bonds

With property bonds rarely used and very few defendants having the money for cash bail, most people turn to bail bonds to help their loved ones leave police custody temporarily. Under this bail option, you hire a bail bondsman on behalf of the defendant and act as the cosigner. The company deposits a surety bond with the court at a small fee, guaranteeing the defendant’s release.

In the bail bond contract, you pay a non-refundable fee of 10% of the 100% of the bail amount. For instance, when your full bail is $100,000, you will pay a nonrefundable bail bond premium of $10,000. Some companies even provide discounts to specific clients. If the defendant has legal representation or is a union member, a government worker, or a military member, they qualify for discounts. Additionally, if you, the cosigner, meet the requirements for the discount, you will pay a discounted premium.

Be aware of bail bondsmen charging rates below 5%. It is a violation of the law, and they could be using the price to appeal to customers, and once they have your business, they introduce hidden charges that significantly increase the cost of bail bonds. The premium is your only payment to a bail bonds firm. Other additional costs, like annual renewal fees, are illegal, and you should avoid companies with these extra fees.

Collateral in Bail Bonds

In addition to the premium fee, your bail bondsman might demand collateral to secure the surety bond they have deposited on your behalf. Collateral can be any valuable item, twice the total bail that you, the cosigner, surrender to the bail bonds firm to act as security. If the defendant jumps bail, the bail bondsman can seize the property or sell it to recover the money they have lost by paying the accused’s full bail.

Not all bail bonds demand collateral. Some offer no collateral bail to eligible clients, making bail more accessible.

Cosigner Liability

When you partner with a bail bonds firm to help a loved one out of jail, you become a cosigner or indemnitor. This is a massive responsibility, and you should only assume it if you trust the defendant will comply with court terms upon release so that you can receive your collateral back. When you cosign a bail bond contract, you are responsible for paying the premium, in whole or in an agreed-upon repayment plan.

Additionally, when your bail bondsman demands collateral, you will use your property or an asset. Doing so means trusting the defendant with your lifetime investment, which is challenging.

Besides, you are liable for the defendant’s future court appearances. If they jump bail or engage in any other violation, the company will hire a bounty hunter to find them. If they fail to trace the defendant successfully, they will come after the property you used as security for the bond to recoup their losses.

Release Without Bail

If you cannot even afford the bail premium bail bond companies charge or lack collateral to secure a bond, you should request an OR release for the defendant during arraignment. Typically, any detainee in California is eligible for an OR unless:

  • At least one of the charges they face carries the death penalty
  • Releasing the defendant would threaten public safety
  • Release without bail would not incentivize the defendant to appear on a future date

In specific counties, judicial staff stand by 24/7 to hear OR release requests and make decisions. In others, the matter is addressed during arraignment or in a separate adversarial hearing.

The defendant’s legal team will argue for an OR release during arraignment. The judge will then ask for the prosecutor’s opinion or additional information to help decide.

In the bail proceeding, the prosecutor presents evidence against release without bail, while the defendant argues for the OR. The accused must persuade the judge that they deserve an OR release so the judge can rule in their favor.

The Humphrey Hearing

California is against detaining defendants merely because they cannot raise bail. Therefore, if your loved one is denied an OR release, the only option is to post bail. However, when you fail to raise the money five days after the bail hearing or hire a bail bondsman, the court will schedule a Humphrey proceeding and release the defendant without posting bail if they cannot afford bail, even when given more time, and do not endanger public safety.

Unless the defendant is charged with a serious or violent felony or has clear and convincing evidence of endangering public safety, the defendant will qualify for release without posting bail.

Find a Profound Bail Bondsman Near Me

The California pretrial release process is nuanced, and navigating the process to help someone out of jail pending trial requires the help of a professional bail bondsman. At Justice Bail Bonds, we will help you locate the detainee, obtain all the necessary details to process the release, explain your bail options, and offer financial support at a premium to make it all affordable. Call us at 714-541-1155 to discuss your case with our bail bondsmen in Temecula.