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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 CellThidarat Petprasom / Dreamstime.comAt 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."

Photo Credit: Thidarat Petprasom / Dreamstime.com

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  • Fist of Etiquette||

    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.

    Look, people don't go into the criminal justice business out of the goodness of their hearts.

  • Diane Reynolds (Paul.)||

    Could everyone just keep an eye out for the Union thug in this deal, you know... keep tabs on him during this process?

  • Eddy||

    Nice work, geniuses, the right to cash bail is fairly probably one of the rights the people had in mind when the 9th Amendment was ratified, and when the 14th's guarantee of the privileges and immunities of citizens was adopted.

    I say this because of all the founding-era documents recognizing a right to bail in noncapital cases, and even in capital cases unless the proof is great or the presumption strong.

  • Eddy||

    And the courts won't save you from your idiocy, because they have an ideological hostility to the 9th Amendment: "We can't be trusted - once we admit there's non-enumerated rights we're just going to start inventing rights at random based on our feelings and what we had for breakfast!"

    As opposed to inventing rights at random *without* the 9th Amendment.

  • Rich||

    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.

    How about just using the defendant's FICO® score? Or, the system Snake Plissken endured in Escape from New York?

  • John||

    Cash bail is basically a market solution to the problem. Let those out who have the ability and willingness to provide some kind of cash guarantee of their good behavior. So the genius "libertarians" at reason want to eliminate this market solution because it is so unfair to poor people and replace it with the arbitrary authority of a judge or worse some cockamamie algorithm. Yeah, that sounds great.

  • John||

    Contrary to what reason seems to believe not everyone who is arrested is innocent. The problem with this whole movement to get everyone out on bail is that it does real damage to the faith in and the effectiveness of our justice system. Just once I would like to see reason write an article defending the rights of people who are the victims of crimes. Yeah, everyone has a right not to be thrown in jail without due process and for a crime they didn't commit. But everyone also has a right to seek justice when they are the victim of a crime.

    So let's go ahead and eliminate bail. Lets just let everyone short of Charlie Manson out on bail. That sounds great except that in most cases the person arrested is guilty. So, I am minding my own business and some dickhead steals my car or identity or breaks into my house or attacks and robs me. I call the police, the police arrest him, and then because we don't have bail anymore, he is out in front of my house laughing at me with a court date in two years. How is that justice? What about the rights of the people he then goes and victimizes while out on bail? Reason never considers that.

  • John||

    The problem here is that there are too many laws and we throw people in jail for things that either shouldn't be crimes at all or if they are don't warrant throwing the guilty party in jail. The solution to that is to have fewer laws and only arrest and jail people for good reason. The solution to that is not just to decide that we should stop locking everyone who is arrested up.

  • Eddy||

    What about my 9th Amendment point above?

  • John||

    That is a great point. Cash bail is a right under the common law. I don't think they should be able to deny cash bail absent a very specific finding of you being dangerous. It is unbelievable that anyone who cares about civil rights would support denying someone bail based on what amounts to a fucking credit score.

  • Eddy||

    It wasn't what they "intended." They thought that more poor defendants would get released. When they said abolish bail they didn't mean have *fewer* people released, such was not their plan, and there's no way they could predicted their plan would be hijacked in the interests of a broad program of pretrial detention.

  • Eddy||

    /sarc, I suppose I need to add.

  • Scarecrow Repair & Chippering||

    So you like guilty until proven innocent, especially when the guy is in jail long enough before trial that he loses his job, house, and car because he can't earn a living or help with his defense.

    Contrary to what come commenters think, not everybody arrested is guilty, not every law has victims, and not all criminals are desperados who deserve to rot in jail for two years before their court case.

  • John||

    No I don't like guilty until proven innocent. I am not against cash bail. If you are willing to put up a surety that you will not get in trouble, you should get out. But you shouldn't get out for nothing unless it is a minor crime. You shouldn't be arrested unless the crime is serious and there is probable cause to believe you committed it. If that is the case, requiring you to post some kind of surety to get out of jail is not unreasonable. You only think it is unreasonable because you assume that the person arrested either didn't commit the crime or was arrested for something that shouldn't be a crime. If that is the case, the solution is to not arrest them in the first place.

    You can't seem to understand that there are other competing rights here besides the rights of the accused. The people who are victimized by criminals let out on bail have rights too.

  • Scarecrow Repair & Chippering||

    *I* can't seem to understand?!? You're the one spouting off "shouldn't be arrested unless ..." as if that's anything but a fantasy in this land full of victimless crimes and unaccountable cops and prosecutors.

  • John||

    The solution to that is to get rid of victimless crimes not make it impossible to do justice in real crimes.

  • Scarecrow Repair & Chippering||

    Right, and in the meantime (the next 50 gazillion years) we'll just assume guilty until proven innocent.

    Your scenario isn't even close to common, and the few criminals who do go out on OR and commit further crimes have just boosted their chances of not getting released, on the very good grounds that they have shown their propensity to do stupid things. I bet not even 10% would fall into that category.

  • UnrepentantCurmudgeon||

    This is not about "guilty until proven innocent". This is about making sure that the justice system is in fact allowed to work. Arrest brings the offender before the court. The judge (not the police officer) considers the alleged offense and whether bail is justified and if so in what amount, or whether OR is sufficient (and BTW, this can be reopened at any time). "Stiff" bail is intended to mitigate the risk of flight or non-appearance generally. In the southwest, where it is possible for Hispanics to cross back and forth across the border, this is no laughing matter. Sometimes the fact that a family member has had to put up their house as security on a bond is the only thing that keeps the accused honest about returning to court. If anyone knows a better way other than bond or jail pending trial, let's hear it. But these "judicial risk assessment" notions are just pie-in-the-sky nonsense and any sitting judge will tell you so.

  • Jerry B.||

    Wonder how many additional crimes will be committed in California by the now-unemployed bail bondsmen. Will they get a break from the Progressives when arrested?

  • Scarecrow Repair & Chippering||

    They can use their money handling skills quite well in the political arena.

  • Uncle Jay||

    Americans should always have a bail system.
    We're all rich beyond measure and have nothing else to do with our money anyways.
    Besides, bail money help pay the salaries of those are kind enough to take the time and trouble to oppress us.

  • buybuydandavis||

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

    Duh
    Cash bail is an *alternative* to pretrial detention
    Remove it, and it's back to pretrial detention

  • Brendan||

    I understand the Japanese legal system doesn't have cash bail either.

  • fdog50||

    I live in a large, mainly rural and small town county and the standard for pre-trial release is usually set on factors like ties to the community. Person who has lived in the county for years, has family here and has a job is usually released pre-trial on what is called "supervised release" meaning no cash bail, but certain requirements like no alcohol or drug possession, live at a specific residential location,no contact with witnesses, maintain employment, and report to an agency once or twice a week. This is often followed even in the case of non-violent felonies, or even some violent felonies like assault. Therefore the only people who have cash bail set on them are those with almost no toes to the community, like transients. Past crimes are influential mainly of those crimes show a history of nonappearance or failure to follow court orders.

  • Longtobefree||

    Here is full transparency:
    If you are a minor, you are too young to reliably show up in court. Remain in detention. (never mind all that old enough to kill my baby and old enough to determine my own sex stuff)
    If you are a senior citizen, you probably will not remember to show up in court. Remain in detention. (never mind the judges on the court)
    If you are over 21 and under 65, you are capable of starting over somewhere outside of this court's jurisdiction. Remain in detention.
    Problem solved.
    Also not that there is no possible discrimination based on real of assumed sex/gender, on race, on religion, on economic status, or on anything else the left can think up.

  • ||

    "people who can't make bail are more likely to be convicted, accept bad plea deals, and receive harsher sentences." Of course they are. High bail was set on them in the first place because the evidence against them was strong and the alleged crime was serious.

  • Number 2||

    So Scott, if we don't want judges to decide these matters because they were awarding high bail in the first place, and we don't want algorithms to decide these matters, then who or what do we do?

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