Q: I have two basic questions. Is bail still required in California for release from jail? Hasn’t Los Angeles County greatly reduced when bail has to be paid?
K.L., Hermosa Beach
A: Article 1, Section 12, of the California Constitution sets forth that an individual “shall be released on bail by sufficient sureties,” except in certain cases. These include capital crimes, certain violent felony offenses, felony sexual assault offenses, and those felony offenses when “facts are evident or presumption great,” and the defendant has threatened another with great bodily harm which likely will be carried out if the person is released.
Article 1, Section 28, of the Constitution, known as Marsy’s Law, further provides that when setting, reducing or denying bail, the court shall take into consideration the protection of the public, the safety of the victim, the seriousness of the charges, any previous criminal record, and the likelihood the defendant will appear in court.
In sum, bail is still required in California in quite a number of matters. Also, it is important to recall that in November 2020, California voters rejected Proposition 26, which sought to eliminate cash bail in favor of a risk-assessment release system.
But in 2023, Los Angeles County adopted a new system referred to as PARP (Pre-Arraignment Release Protocols), which does significantly limit when cash bail is mandatory before arraignment in cases involving non-serious or non-violent offenses. Release in those matters is determined by a combination of law enforcement options and, if necessary, judicial review.
In Los Angeles County, with regard to a qualifying non-serious or non-violent offense, a person may be given a citation and released without actually being booked. Or the person could be booked and fingerprinted, but released without court review. In some instances, the individual will not be released until a magistrate has evaluated the circumstances. Research indicates 40% of bookings remain ineligible for PARP, and are subject to the cash bail process.
Q: My second question is if bail is not required, what kinds of charges are involved and in what instances would someone be held without any bail being allowed or set at all?
K.L., Hermosa Beach
A: The types of offenses where bail is not required can include petty theft and shoplifting, vehicle code violations, possession of drugs but without aggravating factors, and an arguably modest property offense, such as trespassing or vandalism. A non-violent felony (such as petty theft with a prior conviction) also might come within this categorization. This kind of conduct is referred to as cite and release or book and release. Note that even with a non-violent felony, a judge can still deny release (in other words, set no bail) if the individual presents a substantial likelihood of causing great bodily harm to others, or if he or she is a serious flight risk.
On the other hand, various offenses are ineligible for zero bail, including if an arrest is made for serious or violent felonies (such as carjacking, rape or murder), or sexual offenses such as sexual battery and crimes against minors, or for possession of firearms or firearm-related offenses, or with regard to elder and/or child abuse.
Ron Sokol has been a practicing attorney for more than 40 years, and has also served many times as a judge pro tem, mediator, and arbitrator. It is important to keep in mind that this column presents a summary of the law, and is not to be treated or considered legal advice, let alone a substitute for actual consultation with a qualified professional.