This week, the state Senate will consider revisions to a bill that has promised to be California’s answer to the public’s demands for bail reform.
However, after a year of legal wrangling between the governor’s office, the judicial branch and the Legislature, Senate Bill 10 has been gutted and watered down.
The new version essentially replaces the evils of money bail with a worse evil known as preventative detention, which allows a judge to jail a defendant based on whether that person presents a risk of flight or a danger to the public.
Under current law, a person is freed or jailed, even before being found guilty, based on the amount of money they can put up. After our office filed an appeal for a man held on $600,000 bail for stealing a bottle of cologne, the state Court of Appeal found that the money bail system was an unconstitutional a tax on the poor. The court also found that setting a bail simply to keep someone behind bars was impermissible and that judges had to exhaust all non-monetary conditions before incarcerating a person before trial.
Originally, SB10 would have provided a rational system of deciding whether a person would be released or not, based on an assessment of the risk they pose. Now, the bill would allow pretrial detention even for misdemeanor.
For example, anyone who previously violated a court order, or failed to follow a condition of pretrial release, could be detained, as could anyone charged with a serious or violent felony. Instead of a presumption favoring release, the new SB10 presumes that a person will be detained and requires that they prove why they should be released. The bill allows prosecutors to rely on hearsay statements and police reports in deciding who should be detained, regardless of actual risk.
Perhaps it should not be surprising that the Judicial Council, which initially was a major opponent of bail reform, now supports the new bill, since it gives unprecedented power to judges. Rather than relying on a risk assessment tool, judges would have the power to detain people based on their subjective determination.
Also, each county’s board of supervisors would be allowed to decide who would be ineligible for release. The bill also gives power to police and prosecutors to decide conditions of release, and to probation departments, which supervise those convicted of crimes, to recommend who should be jailed before trial. At the same time, it would exclude public defenders and community organizations from any role in the implementation or oversight of the new law.
The legislation calls for some positive changes: data collection, expedited appeals and a prohibition on charging defendants fees for court-ordered supervision. Most importantly, the legislation would eradicate the predatory for-profit money bail industry -- a goal of the reform movement and all those committed to equal justice.
But replacing a wealth-based discriminatory system of determining pretrial release with a system where virtually everyone is detained pretrial is not the answer. This is not the bail reform California needs.
Jeff Adachi is the public defender in San Francisco. He can be contacted at firstname.lastname@example.org.