Capitol Alert

California moves to eliminate cash bail under revised bill

State Sen. Bob Hertzberg, D-Van Nuys, talks with Sen. Cathleen Galgiani, D-Stockton, right, after lawmakers approved his measure to change the state’s bail and pretrial release policies on May 31, 2017. San Francisco’s public defender says the new version of the bill is not real bail reform.
State Sen. Bob Hertzberg, D-Van Nuys, talks with Sen. Cathleen Galgiani, D-Stockton, right, after lawmakers approved his measure to change the state’s bail and pretrial release policies on May 31, 2017. San Francisco’s public defender says the new version of the bill is not real bail reform. AP file

California would eliminate cash bail, going further than any other jurisdiction in the country to remove money from its pretrial release system, under a legislative proposal unveiled Thursday.

The revised plan arrives nearly a year after proponents pulled their initial bail overhaul measure to negotiate further with Gov. Jerry Brown and court officials — and just weeks before the end of the legislative session. While Brown’s office was involved with developing the plan, he has not committed to signing it if the bill reaches his desk.

“The essence of this measure is we’re going to look at people as people,” said Sen. Bob Hertzberg, a Los Angeles Democrat who is carrying the bill.

Advocates of abolishing bail contend that too many Californians remain stuck in custody because they cannot afford to bail out, effectively creating an unequal system of justice based on wealth. Counties currently determine their own bail schedule by crime, and offenders can secure their release by paying the entire amount, to be returned at the conclusion of their case, or applying for a surety bond through companies that charge a 10 percent fee.

Senate Bill 10 would instead order the California Judicial Council, which oversees the state court system, to develop standardized “risk assessment tools.” Local agencies would use the system to evaluate any individual arrested on felony charges for their likelihood of returning for court hearings and their chances of rearrest, while most individuals arrested for misdemeanors would be released within 12 hours without assessment.

A person whose risk to public safety and risk of failure to appear is determined to be “low” would be released with the least restrictive nonmonetary conditions possible. “Medium-risk” individuals could be released or held depending on local standards. “High-risk” individuals would remain in custody until their arraignment, as would anyone who has committed certain sex crimes or violent felonies, is arrested for driving under the influence for the third time in less than 10 years, is already under supervision by the courts, or has violated any conditions of pretrial release in the previous five years.

The measure gives judges discretion during the arraignment hearing to decide whether to release an individual and on what conditions. It also introduces a process for the prosecution to file for “preventive detention,” blocking the defendant’s release pending a trial, if they believe there are no conditions that would ensure public safety or their appearance in court.

“With money bail, the door to the jailhouse swings open and shut based on the amount of money in your pocket, and that’s wrong,” said Assemblyman Rob Bonta, an Alameda Democrat who helped craft the legislation. “We believe that due process and fairness and justice and safety require that each individual be individually assessed.”

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A legislative analysis of the approach estimated it will cost hundreds of millions of dollars annually to establish and implement the system.

SB 10 likely faces a tough battle in the weeks ahead. Its predecessor fell several votes short in the Assembly last year, after an intense lobbying campaign by law enforcement groups and the bail industry.

Some longstanding allies of the effort also reversed their stance, declaring the new proposal a betrayal. San Francisco Public Defender Jeff Adachi this week criticized the judiciary for co-opting the bill and giving judges “unbridled power” to determine whether an individual should be released.

“It’s a complete abomination of what bail reform set out to do,” he said in an interview. “Everything is focused on detaining a person.”

The American Civil Liberties Union of California, which had originally joined with lawmakers to introduce SB 10, pulled its sponsorship from the amended measure.

“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,” Natasha Minsker, director for the ACLU of California Center for Advocacy and Policy, said in a statement.

Facing an existential threat to its business, the bail industry was already gleefully highlighting the division to undermine liberal support for the proposal.

“This bill does nothing to allow people in poverty or of color to get out of detention easier, it simply detains EVERYONE,” David Quintana, a lobbyist for the California Bail Agents Association, said in a statement. “It’s the Mass Incarceration Act of 2018 — bail reform Trump and Jeff Sessions would love.”

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