Last year — finally — California took the huge positive step of eliminating money bail in its criminal justice system. Unfortunately, it did so by enacting a flawed bill, Senate Bill 10.
The money bail industry, which will be put out of business by the new law, has succeeded in qualifying an initiative to repeal the recently enacted statute. Repeal would be a terrible step backwards. We must fix the problems in SB 10, not return to the unfair approach that allows wealth to determine who is free and who is behind bars.
Prior to SB 10, which was signed into law by Governor Jerry Brown, the cash bail system imprisoned tens of thousands of people each year, before they were convicted of any crime, solely because they could not afford to get out of jail. It punished people just for being poor.
It also discriminated by race. African American men were less likely to be released on their own recognizance and their bail amounts were 35 percent higher than for white men.
Sign Up and Save
Get six months of free digital access to The Sacramento Bee
Money bail did not make us safer because we can’t assume that those who are detained are guilty or dangerous. One in three felony arrests does not result in a conviction. Only 14 percent of felony convictions in California result in a prison sentence.
At the last minute, before it was voted on in the legislature, SB 10 was modified. Money bail was replaced with individual risk assessments. A person whose risk to public safety and flight risk is determined to be “low” would be released with the least restrictive non-monetary conditions possible. Local standards would determine whether “medium-risk” individuals are detained or released. Judges would be required to keep “high-risk” individuals in custody until their arraignment.
The key problem is that SB 10 has no criteria for how risk will be determined. As revised, SB 10 leaves this to each locality and ultimately it gives judges total discretion during the arraignment hearing to decide whether to release an individual and on what conditions.
The solution is to ensure that the application of SB 10 is carefully monitored and that risk assessment tools are designed and implemented in a fair and non-discriminatory manner. State Senator Bob Hertzberg recently introduced SB 36 to minimize bias and disparate outcomes in the pretrial setting based on race, ethnicity, gender, economic circumstances and behavioral or developmental disabilities.
No matter the fate of SB 10, SB 36 is important in seeking to improve outcomes and transparency in pretrial risk assessment tools and practices, which already are used in 49 California counties.
Many of the objections to SB 10 are misguided, and some would be cured by SB 36. For example, critics assert that, under SB 10, risk assessment tools will decide who is detained and who is not.
That’s false. under SB 10, judges determine whether to release a person from custody. The result of a risk assessment does not independently trigger any detention action. Risk assessment instruments add to the information that judges and pretrial case workers use to make release and detention decisions.
There’s justifiable concern that the risk assessment tools might be racially biased. Of course, that’s an issue in the California counties that already use them. SB 10 requires that local courts only use scientifically-validated tools that have been vetted by a statewide panel of experts. It also creates a standardized set of rules for the proper use of these tools. Contrast that with the lack of risk assessment regulation under current law, which enables counties to use risk assessment information with little guidance or oversight.
Critics of SB 10 also falsely assert that it creates a presumption of detention. To the contrary, under SB 10, most people arrested for misdemeanors will be released within 12 hours or less, and at most risk levels, the presumption is for release with the least restrictive non-monetary conditions. Even if someone is designated “high-risk,” a judge may release that individual at arraignment if there is not a sufficient basis for detention under the circumstances.
It’s important to ensure that the new system is as fair as possible and to provide guidance to local courts regarding how best to implement SB 10 in a way that minimizes disparate outcomes based on race and wealth. That should be the focus now, not restoring the unjust system of money bail.