Art. 1, section 12 of the California Constitution guarantees the right to release on bail by sufficient sureties, with the exception of capital crimes and certain violent felony offenses.  The right to bail (in all but capital cases) dates back to 1849 - the year California's first constitution was adopted.  For many years, California courts limited a detainee's right to release on bail in non-capital offenses by imposing their own judicially created public safety exception.  This unwritten rule was challenged in In re Underwood (1973).  In that case, the California Supreme Court held that there is no public safety exception and the sole purpose of California's bail system was to assure the defendant's appearance at trial.

In 1974, Art. 1, section 12 was amended by Proposition 7.  In addition to the right to release on bail, Prop 7 added that "[a] person may be released on his or her own recognizance in the court's discretion."  This provision was added upon the recommendation of the California Constitutional Revision Commission who stated that "'[t]he 'own recognizance' system presents a desired alternative to the bail system, which frequently works an injustice to those who cannot afford to post a bail bond . . . the Commission recommendation will . . . [be] more consistent with contemporary  concepts of social equity and fundamental justice for all persons, regardless of their economic status.'"  (People v. Standish (2006) 38 Cal.4th 858, 890-91).  Own recognizance (OR) release and release on bail are "alternative and complementary systems." (Van Natta v. Scott (1980) 27 Cal.3d 424, 452). 

In 1982, with the passage of both Proposition 4 and Proposition 8, California voters overwhelmingly demanded that public safety be the primary factor considered by a court when making bail decisions.   

Three principles can be gleaned from this very summary analysis of bail law as it has evolved over the years:  (1)  there is a right to release on bail by sufficient sureties in all non-capital cases; (2)  that right can be limited by a judge in the interests of public safety; and (3) if an offense is bailable, and the detainee cannot afford money bail, the judge has the discretion  to permit OR release, but like money bail, it can be denied for public safety reasons.

SB 10 mandates a pretrial risk assessment for all felony offenders and then divides them into three categories - low, medium, or high risk.  Those charged with most misdemeanors are not assessed pretrial and are to be booked and released, which is one of the reasons it upsets law enforcement groups. Perhaps a better solution would be to conduct a risk assessment on all offenders (misdemeanor and felony), which will then place them in a low, medium, or high risk category.  OR release was enacted for those considered "low risk" and cannot afford money bail.  Art 1, section 12 was enacted (via Prop. 4) to deny release on bail to those considered "high risk" who commit certain violent felonies regardless of wealth status. 

What about those people considered "medium risk"?  In those situations, it is within the court's discretion to allow OR release with conditions.  If the court believes that OR release with conditions is not justified under the circumstances of the case, money bail should remain an option.  Why?  Well, if the "medium risk" offender cannot afford money bail, then the risk to public safety if released and/or keeping him or her detained to assure his or her appearance at trial are both reasons to justify pretrial detention.  If he or she can afford money bail, then there is a constitutional right to be released by "sufficient sureties."  The purpose of release to a surety is to transfer the accused from the custody of the law to the custody of a surety who will be responsible for his or her appearance at trial with the hope that the accused does not engage in pretrial misconduct while released.

There are no easy answers to this dilemma.  However, releasing the majority of people accused of misdemeanors without assessing their risk does not comply with constitutionally required public safety mandates.  Eliminating money bail altogether would eviscerate an entire industry and leave thousands of people unemployed.  It would also infringe on the constitutional right to release on bail by sufficient sureties.  What is known is that SB 10 rose from the dead early last week as an entirely new beast and was rushed through and signed into law too quickly.  It has left all sides of the debate over bail reform upset and unsatisfied.