The important effort to eliminate money bail in California has reached a huge snag: The revised version of Senate Bill 10, which passed the state Assembly on Monday and the Senate on Tuesday, risks making a bad system even worse.
Although I strongly support eliminating money bail and urged passage of SB 10, the recent amendments to the bill could lead to the detention of more people, and likely will exacerbate racial injustices. Gov. Jerry Brown should veto it.
California’s current cash bail system jails tens of thousands of people each year simply because they are poor and do not have the personal wealth to post bail before trial. There also is a racially discriminatory impact: African-American men are less likely to be released on their own recognizance and their bail amounts are 35 percent higher than for white men.
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Nor can it be assumed that those who are detained are guilty or dangerous. One-third of felony arrests do not result in a conviction and only 14 percent of felony convictions in California result in a prison sentence.
The need to eliminate money bail is not new. Forty years ago, then-Gov. Jerry Brown said that bail is a “tax on poor people in California. Thousands and thousands of people languish in the jails of this state even though they have been convicted of no crime. Their only crime is that they cannot make the bail that our present law requires.”
But there is a particularly urgent need for reform now because in January 2018, the California Court of Appeal declared the state’s bail system unconstitutional and concluded that “legislation is desperately needed.”
SB 10, if enacted, would eliminate money bail in California and replace it with individual risk assessments. A person whose danger to public safety and flight risk is determined to be low would be released with the least restrictive 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. But as defined in SB 10, this includes anyone under supervision by the courts or who has violated any conditions of pretrial release in the previous five years.
The key problem is that the current version of SB 10 has no criteria for how risk is to be determined. The bill leaves this to each locality and ultimately gives judges total discretion to decide whether to release an individual and on what conditions. SB 10 also provides a process for prosecutors to file for “preventive detention,” blocking the defendant’s release pending a trial.
Allowing pretrial detention without any criteria creates a serious risk that more, not fewer, people will be detained. Experience shows that judges often will over-predict dangerousness. If a judge releases a person who then commits a serious crime, the judge will be subjected to great criticism and perhaps even recall or defeat at the polls. But keeping a person in custody never risks such consequences for a judge.
Moreover, SB 10 creates a presumption in favor of detention – including for certain misdemeanors – which could mean that more people are subject to pretrial detention. Putting the presumption against release requires that a defendant prove a negative -- that he or she is not a flight risk or a danger to the community.
The presumption must be the opposite: A person should be released unless the prosecutor proves that the person is a flight risk or a significant danger to the community.
The broad discretion given to judges in assessing risk likely will lead to racially biased decisions. Everything we know about the criminal justice system is that when there is substantial discretion, it is exercised in a racially biased manner. As President Barack Obama explained: “A large body of research finds that, for similar offenses, members of the African American and Hispanic communities are more likely to be stopped, searched, arrested, convicted, and sentenced to harsher penalties.”
The revised version of SB 10 gives judges unfettered discretion in deciding whether to keep a person in jail and has no mechanisms for monitoring the racial impact of these decisions.
Money bail should be eliminated. But not with something that could be even worse.
Erwin Chemerinsky is dean and professor of law at the UC Berkeley School of Law. He can be contacted at firstname.lastname@example.org.