Californians who want to bring fairness to the criminal system recognize that there is no justice without meaningful bail reform.
Wealthy people buy their liberty and fight their cases from home without regard for public safety. Poor people – the vast majority of criminal defendants – languish in jail even for minor charges. They lose jobs and their families go into debt paying non-refundable bail bonds. Those who can’t pay bail face a heartbreaking choice – assert their innocence and stay in jail, or accept a criminal conviction and its lifelong consequences to get out.
Support is building for Senate Bill 10, which promises widespread release for all misdemeanors and low-level felonies, but with conditions to protect public safety.
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But now judges – the very people who set the high bail amounts that extort false pleas – want power over the bail reform movement. A group commissioned by California Chief Justice Tani Cantil-Sakauye just released its blueprint – and it is not the change Californians have in mind.
The judges’ plan centers on replacing cash bail with computerized algorithms to decide who should be locked up. This would not be based on individual circumstances, but on statistical predictions of what other people with similar characteristics have done in the past – in other words, from profiles.
These profiles suffer from inherent racial and economic class bias because they will be derived from our discriminatory criminal justice system. If people of color or poor people are more likely to be arrested, then their risk scores will be higher.
While SB 10 limits the use of these tools and imposes oversight to prevent discrimination, the judges falsely claim the tools are unbiased and want to use them without oversight.
The tools can lower, raise or maintain incarceration rates depending how the court calibrates them. Given their institutional interest in rapidly processing cases, it is unrealistic to expect that judges will use these tools to lower pretrial incarceration rates. Instead, there is great danger that they will eventually result in more poor people locked up longer.
The judges’ proposal amounts to a power grab. They want to reserve unlimited power to override recommendations, which is already happening in counties using the tools. They seek to avoid procedural requirements – to hold hearings, make a record of their reasoning and to allow an effective defense – that would ensure some fairness and accountability.
By contrast, SB 10 would relieve much of the unfair coercion under the existing bail system that pressures people to quickly plead guilty, not because the evidence proves guilt, but because it is the only way out of jail. In a recent report, Human Rights Watch found that 87 percent of misdemeanor defendants and 91 percent of non-serious felony defendants in San Francisco pleaded guilty and were released before their earliest opportunity to go to trial. We must not replace money bail with an arbitrary, discriminatory system that gives complete and unaccountable power to the judges.
Jeff Adachi is the public defender in San Francisco. He can be contacted at firstname.lastname@example.org.