The California Legislature through Senate Bill 10 achieved a major victory by eliminating a cash bail system that regularly jailed people who could not afford to buy their freedom. But in place of bail, the law has left a void of uncertainty, the details of which have been left to judges to determine how a new system will work.
To avoid replacing one unjust system with another, the California judiciary must dedicate itself to presiding over a system that is fair and equitable, and that dramatically reduces the population in county jails. The stakes are enormous.
As a judge and former prosecutor in California, we have seen how pretrial detention can determine the outcome of an entire case and alter someone’s life forever. Even a short stint in jail can mean the loss of housing and employment, and can devastate families and communities. People desperate to go home are more likely to plead guilty even when they are innocent and tend to receive longer sentences if convicted.
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Under the cash bail system, outcomes often turned on money. Right now, thousands of poor defendants who pose no risk sit in California jails, wasting scarce public resources and disproportionately affecting people of color.
These are the evils that judges must remedy under SB 10. The legislation, signed into law by Gov. Jerry Brown but subject to challenge by the bail industry, broadly calls for a new system for pretrial detention based on an assessment of each defendant’s risk. The California Judicial Council will craft rules to determine how that system works in practice. And trial court judges will implement these rules, deciding whether defendants will be released or jailed.
Some groups that long fought for bail reform opposed SB 10 in its final form. They argued that the unfettered judicial discretion it affords, combined with undefined “risk levels” for pretrial detention, could lead to even higher rates of incarceration and exacerbate racial bias.
The good news is that members of the judiciary, including the chief justice’s working group on bail reform, have recognized that pretrial reform must include a reduction in the number of people in jail and safeguards against bias.
That means judges must rigorously assess the evidence in every case and not allow presumptions of pretrial detention to turn into automatic detention. Under SB 10, the default for broad categories of defendants is jail before trial. That is especially concerning when the law presumes jail is appropriate based on past conduct, such as an old conviction. It eliminates any real chance for a defendant to move beyond his or her past mistakes.
Judges also must mitigate the racial bias that’s inherent in the use of risk assessments. These tools calculate risk based on data often tainted by systemic discrimination. Without proper safeguards, people of color might be deemed a higher “risk” because they live in neighborhoods that are overpoliced or because they faced discrimination. A panel of experts and judges will develop the standards for these tools, which should include transparent data collection so that any resulting bias can be corrected.
Judges are entrusted to provide equal justice and protect the rights of all people. In criminal prosecutions, where the stakes are highest, that includes upholding due process and giving full meaning to the presumption of innocence. Under SB 10, it is judges who now, more than ever, must ensure that California’s pretrial justice system lives up to these ideals.