Credit: Spike 55151 / Flickr
Imagine California’s system for handling people accused of crimes embodied as a statue of bounty hunter Dwayne “ Dog” Chapman. Senate Bill 10 was supposed to make it go away.
What happened instead was the statue was gone, but the base upon which it stood remained intact. As of October 2019, the old system of requiring cash or a bail bondsman’s assurance as a condition for pre-trial release will go away.
I won’t miss the seedy buildings downtown or what they stand for. People with the means to post cash bail get it refunded if they’re found not guilty or the case is dismissed. If you’re not so wealthy, you get stuck with the bondsman’s 10% fee, regardless.
Passage of the bill happened in a flash, as the Assembly Democratic leadership moved SB 10 to the head of the pack. The normal delay between changes in language as amendments were made and third reading was bypassed.
This was done largely to keep those against changes in the bill, such as the ACLU, from drumming up popular opposition.
Scott Lay in the Nooner Newsletter explains:
Why move it forward this year when the appearance is that of a bill being rushed? J-E-R-R-Y B-R-O-W-N. He is the product of Jesuit high school and studied in a pre-seminary program with the intent of becoming a priest before going to Berkeley for law school. He has not gained a reputation as “soft on crime,” but takes an intellectual approach to criminal justice issues that interests on both sides respect. He has a Republican California Supreme Court justice in Tani Cantil-Sakauye who worked with Hertzberg and Assemblyman Rob Bonta (D-Alameda) on the bill.
In what is likely to be a frustrating bill signing period for the governor with his legacy issues of water, utility liability relief for wildfires, and the train likely in limbo, this could be his closing act on the legislative session. While the Administration does not communicate on the record whether the governor will sign or veto a bill, a bill as big as this one that moves with the strong support of leadership to the governor (after the Senate concurrence vote) does not do so without a nod from the governor’s corner office.
The ACLU leadership switched sides on the bill via an announcement attributed to the three Executive Directors of the California ACLU affiliates: Abdi Soltani (Northern California), Hector Villagra (Southern California), and Norma Chávez Peterson (San Diego & Imperial Counties):
“After further serious consideration, the ACLU of California has changed its position on the recently-amended SB 10 to oppose. As much as we would welcome an end to the predatory lending practices of the for-profit bail industry, SB 10 cannot promise a system with a substantial reduction in pretrial detention. Neither can SB 10 provide sufficient due process nor adequately protect against racial biases and disparities that permeate our justice system.
“Unfortunately, this amended version of SB 10 is not the model for pretrial justice and racial equity that the ACLU of California envisioned, worked for, and remains determined to achieve. We oppose the bill because it seeks to replace the current deeply-flawed system with an overly broad presumption of preventative detention. This falls short of critical bail reform goals and compromises our fundamental values of due process and racial justice.
What replaces the old system is being left to the imagination of the local courts. The argument about bail being unfair to those who are economically or socially disadvantaged isn’t resolved by having a mechanism largely run by the same people who wanted them locked up in the first place. Now–potentially–it’s jail without bail.
Here is a short explainer, via the San Francisco Chronicle:
Under the legislation, California would no longer require people accused of crimes to post bail to go free while awaiting trial. Revisions to SB10 that were made on Thursday would, however, tell local courts to create their own evaluation system for deciding who can be safely released while awaiting trial or sentencing. While ankle monitors or other conditions could be required for a person’s release, those conditions would have to be nonmonetary.
People accused of nonviolent misdemeanors would be released within 12 hours after being booked. But there would be exceptions: People with recent serious or violent felony convictions, multiple failures to appear or allegations involving domestic violence would not qualify. For all other cases, local courts would decide how to assess who is at low, moderate or high risk of re-offending or fleeing when determining whether someone should be released after an arrest.
SB 10 co-author Assemblyman Todd Gloria touted passage of this legislation as a victory:
“Today marks a significant paradigm shift in California and a major step toward a fairer and more just criminal justice system in this state.
“California’s current cash money bail system is flawed. It unnecessarily penalizes poor people who cannot afford the high-cost of bail and it does not make our communities any safer. SB 10 provides us the opportunity to move toward a smarter, more just system that can make sure high-risk offenders remain behind bars and low-level offenders are not held in custody simply because of their inability to pay.
“As a co-author of SB 10, I am proud to support this bill and be part of the coalition that stood up to lead California toward a system that will get us closer to our nation’s pledge of liberty and justice for all.”
The Los Angeles Times editorial board was happy something passed, even if it was flawed:
Because the bill does not sufficiently adhere to a rebuttable presumption of release and too often favors detention, it could leave more people, with or without money, sitting in jail before trial, in danger of losing work — and in the process losing paychecks and therefore even homes and families. That makes them more likely to plead guilty just to get out, even if they could win their cases at trial.
Perhaps most troublesome is that prosecutors would be able to seek pretrial detention based on a poorly defined “substantial reason to believe” that it’s necessary to protect the public or guarantee the defendant’s appearance in court. That provision requires serious tightening if the bill is truly to be considered reform because it undermines the presumption against detention even if the crime charged is relatively minor.
But let’s return to the basic point: Despite all of its compromises, disappointments and flaws, and with all of the work yet to be done, the bill would still achieve a remarkable goal. If it becomes law, it would make probability of danger or flight rather than wealth the determining factor in pretrial release decisions. In so doing, it would correct an egregious failing of the criminal justice system in California.
The Sacramento Bee published an op-ed from UC Berkeley law professor Erwin Chemerinsky, who noted: “Everything we know about the criminal justice system is that when there is substantial discretion, it is exercised in a racially biased manner.”
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.
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Doug Porter
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