California Eliminated Cash Bail. Now Activists and Defenders Have to Make Sure the Replacement Isn't Worse.

The Golden State has a year to implement a new pretrial system, and there's a fear it could lead to more detentions.


Jail Cell
Thidarat Petprasom /

At the tail end of August, California Gov. Jerry Brown signed into law a bill that completely eliminates money bail in the state, significantly changing the way defendants are handled by the courts prior to their trials.

But the bill that was passed, SB10, was not the legislation criminal justice reform activists had written, and changes to the bill that give the state's judicial system more control over implementation have those activists worried that the new system could be even worse.

The crafters of the bill visualized a criminal justice system where people were not stuck in jail awaiting trial simply because they couldn't afford bail, or to pay a bondsman to cover for them. Whether you were jailed or free prior to your trial, they argued, should not be decided by how much money you could scrounge together. The consequences of cash bail are significant: Aside from being deprived of their freedom prior to being found guilty, people who can't make bail are more likely to be convicted, accept bad plea deals, and receive harsher sentences.

But starting in October 2019, money will not be demanded of anybody arrested in California in order to secure release before trial. Thanks to SB10, cash bail and personal bonds will no longer be ordered or offered. Instead, a pretrial assessment system in all of California courts will calculate and consider each defendant's risk factors to determine the likelihood he or she may commit crimes while free, or skip court dates. This pretrial assessment will make recommendations on the reporting and monitoring terms of the defendants' pretrial release.

While this should be cause for celebration among criminal justice reformers, the changes in the law prior to its passage give judges and courts wide leeway to determine that a defendant is simply too dangerous to be released. The reforms are supposed to result in more people—especially poor people—being free and allowed to challenge their court cases from outside of jail. But by putting their pretrial fate in the hands of the very judges known for assigning extremely high bails (entirely for the purpose of keeping people in detention), the new system has criminal justice reform advocates worried that the state will not, in fact, see a reduction in the pretrial prison population. And there's good reason to be afraid: that's exactly what's happening in Baltimore.

"I feel like this was an abomination of what we set out to do," Jeff Adachi, San Francisco's elected public defender, tells Reason. "[SB10] did eliminate the bail industry's involvement, and in that regard that is a positive thing, but it replaced it with a system known as preventative detention, which in my view can be much, much worse in terms of the inequities. What this bill did is made preventative detention the rule rather than the exception. Even misdemeanor crimes could be detained."

So what happens next? The reforms call for the state's Judicial Council to take the lead in researching and deciding which sort of assessment tools and mechanisms will be used to manage defendants between the time of their arrest and the actual trial.

SB10 demands that these assessment tools not be biased, but doesn't specifically demand regular reporting of data that would determine whether these tools are making risk calculations that are based on factors outside of a defendant's control, such as employment status or zip code. Under this bill, the Judicial Council can create procedures to make sure that a person is not stuck in preventative detention due to racial or socioeconomic bias. The council will have its first implementation presentation this Friday.

The American Civil Liberties Union's California chapters helped craft SB10, then turned against it when the law was rewritten to give the judicial branch control over the reform. Given that the law passed anyway, ACLU California chapters are trying to make lemonade. The ACLU is still lobbying for the governor to sign some additional unrelated bills that would increase police transparency. But Natasha Minsker, the director of the ACLU's California Center for Advocacy and Policy, tells Reason they'll then redirect their focus on pretrial release.

"We would like to see the Judicial Council and the local courts really committed to identifying and eliminating racial bias in the system at every stage and implementing increased opportunity for release," Minsker says. "We would like to see those pretrial services focused on services, and not supervision, as their primary function."

She notes that much will depend on whether the risk assessment tools are used transparently. The risk assessment system used in New Jersey (which has almost, but not completely, eliminated the use of money bonds and cash bail), operates completely in the open. Anyone can see and understand how the system scores a defendant and recommends whether the person be detained or released, as well as what sort of monitoring it recommends (to see how it works, check out Reason magazine's recent cover story on the bail reform movement). Other systems, though, operate through proprietary software from private companies. The public might not be able to view the kinds of data these systems collect and use to calculate risk, making built-in biases tougher to track.

Criminal justice reformers and civil rights groups recently put out a letter warning against the overreliance on algorithmic assessment tools to make these decisions. But SB10's text requires the implementation of risk assessment systems, and so the policy battle to come will revolve around making sure these tools are transparent, and that activists and concerned members of the public can understand the reasoning behind pretrial recommendations.

"Advocacy at the local level at each of the 58 county courts is going to be very important," Minsker says.

But that's only if SB10 is fully implemented. Some other movement around the law may alter its course. Almost immediately after Brown signed it into law, representatives for the state's bail bond industry announced they will attempt to force it to a public vote via a referendum. Their California market is massive and at risk, and it's possible that other states will follow California's lead.

The state's Supreme Court is also taking up a case that questions the use of cash bail by judges to essentially force poor citizens into pretrial detention. Earlier in the year, a lower court ruled that it was unconstitutional for judges to set extremely high bail amounts that keep a defendant detained solely because he or she is too poor to pay. The defendant in the case, Kenneth Humphrey, 63, was accused of trespassing into an elderly neighbor's home, threatening him, and stealing $5 and a bottle of cologne. A judge initially set bail for $600,000 and then dropped it to $350,000. Humphrey couldn't pay it and was stuck in jail.

One might think that California eliminating cash bail would render the case moot, but in a 3-0 appellate court ruling, judges were told that they must base their pretrial decision on public safety or a defendant's likelihood of showing up to court. That determination will continue to be relevant under this new system, and Adachi says his office will continue to litigate the Humphrey case. A favorable state Supreme Court ruling has the potential to further discourage judges from putting people accused of crimes behind bars unless the judges are confident they're a danger or a fight risk.

"We plan to contest every case where a person is detained by a judge," Adachi says. "There's going to be a lot of pressure on the judiciary to show that this system works and doesn't hit poor and minority people harder."