‘Zero bail’ policy in Los Angeles is promising, but needs more safeguards

Los Angeles Superior Court has reignited a fierce debate by permanently restricting the use of cash bail through a protocol known as “Zero-Dollar Bail.” In this new system, the majority of crimes committed in cities across Los Angeles County—generally low-level, nonviolent offenses—no longer qualify for cash bail and the person who committed the crime is released.

For those facing more serious charges, they are held until they see a judge and are given alternative conditions for release that don’t include money. For those who commit violent and serious crimes, cash bail and continued detention options remain the same.

This move—that affects both the city and county of Los Angeles—follows a nationwide trend to fix a pretrial system that is based on an accused’s access to cash rather than their risk to society. It also responds to localized troubles in Los Angeles County, like a rising number of jail inmate deaths and allegations of continued incarceration of the accused merely because they cannot afford to buy their way out. 

The county’s transition to this new system has not been smooth, however. Twenty-nine cities filed a lawsuit to prevent the new protocol from taking place, citing public safety concerns. Despite the swift dismissal of the lawsuit, where the judge rejected the claims as “speculative,” the cities have been granted until the end of January to revise and resubmit their complaint. They are now tasked with demonstrating tangible and substantiated harmful impacts stemming from the new policy.

Regardless of the outcome of the lawsuit, we should consider the concerns of those who have first-hand knowledge of the cash bail system as they are best able to identify potential blind spots in a new system. Public safety must always be the priority, but the notion that Zero Cash Bail will make the city and county of Los Angeles more dangerous is misguided. It may, however, need to be tweaked.

There are a number of advantages to a bail system based on flight and safety risk rather than money. First, it’s a better use of jail resources and taxpayer dollars. It will also concentrate more resources on those that pose the biggest risk to society. Furthermore, this change can improve public safety by helping low-level offenders avoid the unintended consequences of pre-trial detention–lost jobs, housing and family ties. 

In fact, the county already has several safeguards in place to assist with responsible and safe transition away from cash bail. Serious and violent offenses—including sex assault, robbery and domestic violence—are not eligible for the zero-dollar bail protocols before they appear in front of a magistrate. 

If a felon poses a significant threat, California law allows those accused of a broad range of offenses to be preventively detained. Los Angeles County also uses periodically validated pretrial risk assessments to guide bail decisions and a pretrial supervision program to monitor individuals released. Finally, according to California state law, law enforcement can always request cash bail to ensure a defendant’s appearance or to protect a victim of domestic violence.

There is some precedent for these changes: Illinois and New Jersey serve as two good examples of states that have been able to move to a cashless pretrial system with promising results. But it was key that they sought the advice of the right experts and resolved all prevalent concerns.

To reach the same level of success, the Los Angeles County Superior Court has to address three main concerns. First, it needs to address the issue of repeat offenders. If a person is on bail for a substantially similar offense, regardless if it is violent or serious, they should not be automatically released. The revolving door into the justice system needs to be shut down by requiring repeat offenders to go before a magistrate for a release decision. 

Second, the current bail schedule allows those accused of serious crimes with access to cash to immediately pay for release without a judge adequately assessing risk. This can compromise public safety. In order to avoid dangerous outcomes, judges must be able to factor individual circumstances, victim feedback and potential risks into release decisions. 

Third, law enforcement should have increased discretion for arrest in a broader range of cases where flight or safety is a concern. This could better address potential risks to individuals and the community at large, when a threatening person is initially stopped for only a minor offense. 

As the county upgrades its outdated system to a modern and efficient model, it needs to do it thoughtfully. In this transition, it is necessary to heed the voices of the broadest range of stakeholders and address their concerns without sacrificing the progress achieved. If done properly, Los Angeles County can emerge as a leader in redefining the pretrial justice system and better balance fairness with safety.