Recent Changes to California Criminal Law: How Courts Now Determine Bail
Over the past two years, California has enacted significant changes to its criminal justice system, with some of the most notable reforms affecting how courts determine pretrial release. At the same time, voters have approved legislation imposing stricter consequences for certain repeat offenses. Together, these changes reflect a shift toward balancing fairness in the bail process with an increased emphasis on accountability for repeat offenders.
End of Traditional Cash Bail
In September 2023, California officially ended its long-standing cash bail system. Courts are no longer permitted to set a release amount solely to ensure a defendant appears in court. Instead, judges must make release decisions based on two primary considerations:
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Public safety – whether the accused poses a credible risk of harm to others if released.
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Flight risk – whether the accused is likely to fail to appear for future court dates.
If the court determines that neither concern is present, release is generally granted without requiring money as a condition. This reform was designed to prevent situations where low-income defendants remained in custody solely because they could not afford bail, while wealthier defendants facing similar charges were able to secure release.
Automatic Bail Review Hearings
Under Penal Code section 1270.2, defendants are now entitled to an automatic bail review hearing within five days of bail being set. This ensures that initial bail determinations are promptly reconsidered, particularly when a defendant can present additional information about ties to the community, lack of prior failures to appear, or other mitigating factors.
Considering the Defendant’s Ability to Pay
The California Supreme Court’s decision in In re Humphrey established that judges must evaluate a defendant’s financial circumstances before setting bail. If monetary conditions would result in the defendant’s continued detention solely due to inability to pay, the court must consider non-monetary alternatives such as supervised release, electronic monitoring, or other conditions that address safety or flight concerns without creating an unfair financial barrier.
Increased Penalties for Certain Repeat Offenses
In November 2024, voters approved Proposition 36, which significantly increased penalties for certain theft and drug-related offenses. Key provisions include:
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Allowing felony charges for repeat shoplifting offenses, even when the value of the property is under $950.
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Authorizing felony treatment-mandated sentences for certain drug crimes, with the possibility of dismissal if the defendant successfully completes a court-ordered treatment program.
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Expanding the ability to impose prison sentences for offenders with multiple prior theft or drug convictions.
These changes represent a move toward stricter accountability for repeat offenders, while still allowing courts to use treatment as an alternative to incarceration when appropriate.
Practical Impact on Defendants and the Justice System
The elimination of cash bail marks a major step toward a fairer pretrial process, reducing the likelihood that individuals will remain in jail simply due to financial hardship. The new requirements for automatic review and ability-to-pay assessments give defense counsel additional opportunities to secure pretrial release for clients who pose no danger to the community.
At the same time, the enhanced penalties under Proposition 36 signal that California is not moving toward blanket leniency. For those who repeatedly engage in theft or drug-related offenses, the risk of a felony conviction and potential prison term has increased.
Conclusion
California’s evolving bail laws are intended to create a more equitable pretrial system, ensuring that detention decisions are based on risk rather than resources. The reforms also reflect a dual focus: protecting the rights of those accused of crimes while imposing meaningful consequences on repeat offenders. As these changes continue to be implemented, courts, attorneys, and the public will see their combined effect on both pretrial fairness and public safety.