Lawmaker Bob Hertzberg makes his case for bail reform bill on Senate floor
Gov. Jerry Brown on Tuesday signed sweeping legislation to eliminate cash bail in California. The change, which will take effect in October 2019, goes further than any other state in the country to remove money from pretrial detention.
“Today, California reforms its bail system so that rich and poor alike are treated fairly,” Brown said in a statement.
Under Senate Bill 10, California will replace bail with “risk assessments” of individuals and non-monetary conditions of release. Counties will establish local agencies to evaluate any individual arrested on felony charges for their likelihood of returning for court hearings and their chances of re-arrest.
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 non-monetary 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.
Advocates of abolishing bail contend that too many defendants remain stuck in custody because they cannot afford to bail out, effectively creating unequal justice based on wealth. Nearly two-thirds of inmates in California jails are being held awaiting trial.
California is at the forefront of a national campaign to end money bail that has also recently seen states like New Jersey and New Mexico adopt polices to circumvent the for-profit bail industry, though none had yet eliminated bail completely.
SB 10 was approved by the Legislature last week, after a nearly two-year push, with largely Democratic support. But it faced heavy opposition from the bail industry and some former supporters of the bill, who said significant amendments to the final version would unjustly expand the number of suspects in pretrial detention.
The American Civil Liberties Union of California, an original co-sponsor of the measure, and other organizations pointed to provisions giving judges greater discretion during the arraignment hearing to decide whether to release an individual and on what conditions. SB 10 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.
Margaret Dooley-Sammuli, a senior strategist with the ACLU’s Campaign for Smart Justice, said California’s approach was not an improvement on the old system and sent a signal to advocates across the country to move ahead cautiously. The organization is involved with bail overhaul efforts in more than 30 other states.
Eliminating bail is as much about reducing the jail population and addressing racial disparities in criminal justice as it is about financial concerns, Dooley-Sammuli said. In negotiating a compromise with Brown and the California judiciary, she said, the authors of SB 10 abandoned those principles.
“We know that where racial disparities are worst is wherever there is discretion,” she said. “That this is the best deal California could figure out is a big concern.”
David Quintana, a lobbyist for the California Bail Agents Association, said the industry is already mobilizing to block the new law from taking effect, though he declined to discuss the specifics.
“You don’t eliminate an industry and expect those people to go down quietly,” he said. “Every single weapon in our arsenal will be fired.”