Will California's Proposed Bail Reforms Lead to More People Behind Bars?

Changes in a bill have caused civil rights representatives to take a step back.


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Supporters of bail reform are turning against a California bill that they initially helped craft, fearing changes in the legislation could actually lead to increased jailing of those who are awaiting trial.

California is looking to follow in the footsteps of states like New Jersey and Alaska and eliminate as much as possible the use of cash bail to decide who is detained in jail awaiting trial. The overdependence on cash bail in our pretrial justice system has led to hundreds of thousands of Americans sitting in jail cells who haven't yet been convicted and are not deemed dangers to the community or flight risks; they simply cannot afford the bail money the courts have demanded.

SB10, introduced in California last year, would replace cash bail schedules with a risk assessment and pretrial system in which courts would determine who is jailed prior to trial on defined dangers to the community or flight risks, not on money. The goal would be to detain only those that the courts worry would either skip out on trial or potentially hurt other people if they were free.

This would be a huge change in the way many courts in California operate, and there are some challenges here. Eliminating cash bail can mean many more poor people don't have to languish in jail (disrupting their lives and livelihoods) waiting for trial. But it also means judges and courts are granted the power to detain people with no way of seeking release at all. This can end up backfiring. In Maryland, where judges were told to reduce their reliance on cash bail, some communities (Baltimore in particular) saw an increase in the number of people who were being detained in jail prior to trial.

Criminal justice reform advocates are therefore very particular in how they want to see the pretrial system reformed. The goal is to get more people out, not leave more people stuck. These advocates were involved in crafting SB10. But the text of the bill since it was first introduced has been changed. And those changes have caused some who helped craft the bill in the first place to either turn against it or at least turn away from it because they fear it will now lead to greater numbers of Californians being held in jail while waiting for trial.

Central to this fear are any potential biases that could be introduced by whatever assessment tool is used to calculate the risk involved in releasing a defendant prior to trial. Civil rights group fear that an overdependence on algorithmic mechanisms to calculate a defendant's risk factor can—when ineptly applied—instead reinforce the same systemic biases that have led to the pretrial incarceration problem in the first place. Some assessment tools that operate on the basis of demographic data—where a person lives, employment status, nonviolent crime history—stick a person in a higher risk category partly because of past biased policing practices. A pack of civil rights and criminal justice reform organizations recently signed onto a letter expressing their fears about reliance on assessment tools and explaining six principles they want used to make sure that these tools didn't continue to perpetuate biases that keep poor minorities trapped in jail even before they've been convicted of a crime.

The American Civil Liberties Union of California, one of the groups involved in crafting SB10, put out a statement yesterday withdrawing support for the bill because the new changes seem to run into this problem. The bill does call for the creation and implementation of assessment tools that would reduce biases in the decision process, and it will require the collection of demographic data about race and gender and other factors to determine whether these pretrial decisions are being made fairly. But it vests all the power over the development and implementation of these assessment tools to the courts themselves. California's Judicial Council, the policy-making body of the state's court system, will be calling the shots.

This is not how many bail reformers want to see change happen. The ACLU wants the development and implementation of these assessment tools to be more independent of the state's judicial system. Natasha Minsker, the center director for the ACLU of California Center for Advocacy and Policy, explained why the ACLU was no longer supporting the bill and is now taking a neutral stance:

Any model must include data collection that allows independent analysis to identify racial bias in the system, supports the use of independent pretrial service agencies recognized as the best practice in pretrial justice, and ensures stronger due process protections for all Californians, no matter where they live.

Jeff Adachi, a public defender in San Francisco, is taking a harder line than the ACLU. He thinks SB10 will actually make problems worse. He believes the bill gives judges far too much power to detain defendants prior to trial. As he writes in the San Francisco Chronicle:

The legislation would also undermine our constitutional right to equality before the law by sorting defendants using crude "risk assessment" tools that are notoriously biased against people of color and the poor. It would then erode due process rights by granting judges overly broad powers to throw these people in jail before trial without input from defense attorneys or the community.

This fracture among reform advocates, combined with the bail industry lobbying hard against the bill, might make it tough to pass.

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  1. Second verse, same as the first! Every intervention only makes it worse!

    1. I probably fucked up the meter on that, but whatever.

      I suspect we have an is/ought problem here. There’s a story, what ought to be, about the legal system existing to protect the rights of good people while reforming/punishing bad people, and assuming that, how do we address the minor bug we’re having with disparate impacts correlating to vulnerability.

      I would argue that the is – the cold, unromantic reality – is that we have a method of weaponizing authority that works most efficiently against those with less ability to defend against it. Protecting the vulnerable would not merely be disincentivized and inconvenient, it would be counterintuitive. Protecting the good is an occasional happy accident. And none of that changes until we stop trying to tweak our last bad answer, and maybe think about new questions.

      Just my thoughts, not trying to make them law or anything. Laws reliably seem to do the opposite of what they want, so I’m definitely not trying to pass a damned law.

  2. I noticed this in Article I(12) of the California Constitution – is this relevant to the reforms?

    SEC. 12. A person shall be released on bail by sufficient sureties, except for:
    (a) Capital crimes when the facts are evident or the presumption great;
    (b) Felony offenses involving acts of violence on another person, or felony sexual assault offenses on another person, when the facts are evident or the presumption great and the court finds based upon clear and convincing evidence that there is a substantial likelihood the person’s release would result in great bodily harm to others; or
    (c) Felony offenses when the facts are evident or the presumption great and the court finds based on clear and convincing evidence that the person has threatened another with great bodily harm and that there is a substantial likelihood that the person would carry out the threat if released.
    Excessive bail may not be required. In fixing the amount of bail, the court shall take into consideration the seriousness of the offense charged, the previous criminal record of the defendant, and the probability of his or her appearing at the trial or hearing of the case.
    A person may be released on his or her own recognizance in the court’s discretion.

    1. If we can’t release repeat violent felon offenders who don’t post cash bail what is the point of having “reform” ?

  3. For reference, Adachi is considered ‘left’, even in SF. No comment regarding his stance here.

  4. Sheesh, Tony. Way to kill the thread.

  5. Sooo I think what I read is that they think a non biased computer algorithm will in fact be biased because it will probably show minorities are at a greater risk of bailing out of town… Even though that is probably a correct assessment. I knew plenty of idiots in high school who bailed town over dumb minor drug charges etc… People will do it for the dumbest reasons. We need to not have dumb laws in the first place, but as long as we do a non biased system for figuring this stuff out is a good way to go.

    Remember it should be NON BIASED in application, not in outcome. Minorities commit more crimes, I wouldn’t be surprised if they jumped bail more… So is a computer wrong for keeping more of them in jail until they go to trial? NO. It isn’t. It’s just that some lefties don’t like differences in outcome, even when deserved. Get rid of dumb laws first, and then rail road people for breaking legitimate laws. That’s always been my opinion.

  6. The California bail-reform merits passage.

    California SB10 does not threaten ANY widely recurrent grave problems ? except the accused’s obtaining a competent attorney, a UNIVERSAL problem.

    In California, virtually every lower court ruling is subject to review by writ of mandamus or other “prerogative” writ (sometimes habeas corpus).

    So, if a judge jails an accused on flimsy premise or per abuse of discretion, the accused’s attorney may obtain the accused’s release by filing an appropriate writ in an appellate California court.

    Also, the judge’s options would not be limited to jailing the accused or releasing her “on her own recognizance.” Alternatives include, but are not only: (a) house-arrest enforced with monitor anklet; (b) monitor anklet alone; (c) release “on recognizance of” (i) defense attorney (including or not including monitor-anklet) or (ii) of spouse or other family member(s) (including or not including monitor-anklet).

    Still, an imperfect system. But a huge improvement. And no one can imagine a perfect system.

    Compare the non-statutory reform that District Attorney Larry Krasner has established in Philadelphia. The reform is laudable. But it, too, suffers problems: It is designed by just one person, Mr. Krasner. It is not law & does not govern reliably (by force of law) the police, the district attorney’s office, and the courts in a way that addresses all pertinent issues of law-enforcement & judicial procedure.

    1. To review details of Philadelphia District Attorney Larry Krasner’s reform, open , then find a 20 March 2018 article titled “Philadelphia DA Larry Krasner Promised a Criminal Justice Revolution. He’s Exceeding Expectations” and written by Shaun King.

      1. I read the article & Krasner memo to his district attorneys. In several places it is quite libertarian, stop charging for marijuana, and if someone is accused of being a prostitute and has less than 3 previous convictions. He is also practical & money conscious by making prosecutors use cost comparisons when they imprison someone and making them justify their thinking. It is worth reading both. Good for Krasner! (And I don’t care if he is a Democrat.)

  7. The “reformers” have done an excellent job of conflating bail, which is intended to insure that an accused person appear at scheduled court hearings, and fines, which are intended as punishment. The amount of bail varies with the severity of the crime. In most states, including California, there is a bail schedule which courts are to follow in all but the most unusual cases.

    So is we are reducing all of this to computer formulas and the discretion of the court, I’m going to wait a year or two and see how we do tracking (a) the rate of failure to appear on the part of accused persons, and (b) the rate of new crimes committed while out of what now passes for bail. My personal guess is that both will be on the high side and we will find ourselves in a murk of criminal “justice” feel-good reforms that do nothing good for anybody.

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