California Voters to Decide the Future of Their State's Bail System

Industry representatives succeed in forcing a referendum on reforms passed by lawmakers.


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This year, California was supposed to be making a historic shift away from the use of cash bail to determine whether people who get arrested are freed or detained in jail prior to their trials.

Instead, the changes probably won't happen until 2021, and only if the voters agree. Secretary of State Alex Padilla announced this week that the reforms, passed via legislation last fall, have been pushed to a referendum to be held the fall of 2020.

SB10, signed into law in August, was intended to eliminate the use of cash bail in the state entirely. Cash bail has come under fire as a pretrial system because courts often apply it thoughtlessly, resulting in poor people being stuck in jail awaiting their day in court not because they're dangers to the community or flight risks, but because they cannot afford to pay. Such people are statistically more likely to plead guilty and receive harsher punishments than they would have had they been free to fight.

Instead of cash bail, California courts would be required to implement an extensive (and possibly expensive) pretrial assessment and monitoring system. Arrested defendants would be evaluated to determine the risks of release, and conditions would be established to keep track of them. If a defendant is deemed to be too dangerous to release, he or she would be detained in jail prior to the trial. Money would no longer be a condition.

None of this sat well with bail bondsmen and the insurance industry that underwrites them. New Jersey has shifted to a system where cash bail is almost completely absent, and that has decimated the bail bond industry. Their representatives fought bail reform in California extensively, and after SB10 was signed into law, they immediately went to work gathering signatures to try to force it to a public vote.

In November those reform opponents declared they had gathered enough signatures, more than 400,000 of them, to push SB10 onto a referendum. This week Padilla validated that they qualified. This means SB10 cannot legally be implemented until after the public vote.

Given current criminal justice reform trends, I'd put the chances of the bail bond industry succeeding here as low. California voters have slowly been scaling back the state's harsh sentencing laws, not to mention legalizing both medical and recreational marijuana use. Furthermore, New Jersey's bail reform experiment has been fairly successful so far. They've got fewer people being detained in jail yet the state has not seen an increase in crime.

But the bill passed in California has some significant differences from what was passed in New Jersey. In California, the judicial branch and the court system has significant amount of control over how these new systems will be implemented, and the law has been written in such a way that it will give judges wide latitude to order defendants to be detained. In New Jersey, the system operates on the presumption that defendants will be released unless prosecutors can make a clear case to a judge that they are too dangerous or a flight risk.

Because of these changes, several criminal justice reform groups that initially helped craft California's bill turned against it, worried that it will actually lead to increases in pretrial detentions. Representatives from the bail bond industry argue that citizens have a right to cash bail, though federal courts don't actually agree with that as long as there is some sort of pretrial evaluation system. But if the end result is for more people to be detained and not be able to get out at all, the case to allow for cash bail as an option grows stronger.

Not that we should expect such nuances from the extensive advertising campaign that will be coming down the line in 2020. Instead we'll see lots of emphasis from both sides on when pretrial decisions lead to bad outcomes—either when a harmless person is subjected to overly harsh pretrial detention because he or she had no money, or alternatively, when a person who is released without having to pay cash bail turns out to be dangerous.

It's worth noting that the temporary suspension of SB10 doesn't stop California communities and court systems from reforming bail on their own or in their own way right now. Currently, Compton is experimenting with a system where judges agree to reduce cash bail demands in exchange for concessions from the defendant, such as an agreement to go a drug or alcohol treatment center while awaiting trial.