Most reformers agree on the basic problem of bail – we reside in a system that is supposed to believe an individual to be innocent until proven guilty in a court of law. However, we have to balance that core belief with concerns about safety.
The problem with the bail system is that it transfers in a monetary incentive as an insurance that an individual will show up to trial as promised and not pose a public safety. Thus we are somehow to assume that an individual who can pay the ten percent of the bail amount for a bail bond is less of a risk to society than the individual who cannot.
Worse yet, the system clearly discriminates against the poor and, by extension, against people based on race and ethnicity. It adds punishment to people based simply on the basis of economic status – inflicting additional punishment that cannot be recouped even if one is eventually found to be not guilty.
And so a new system is clearly needed. One that replaces the current system of money bail with one based on a defendant’s risk to the public.
Enter SB 10. If the governor signs SB 10 as expected, the bail system will end in October 2019 and be replaced by a pretrial release system.
Each county will be charged with coming up with its own system, including which risk assessment tool to use in order to determine whether the risk for release is low, medium or high.
Most non-violent offenders accused of misdemeanors would be released in 12 hours. Low risk offenders would be released on their own recognizance (OR), without any supervision. Medium-risk defendants could be either released or detained, depending on the county. And defendants charged with violent crimes or deemed high risk would remain in custody.
As I have said in previous columns, this does what most reformers would like to see – a replacement of the cash bail system with an actual risk assessment.
Can the new system err? Of course. But then again, people on bail miss court dates and re-offend as well. Monetary payment for bail really does little to ensure that a person doesn’t offend 
again anyway.
In fact, it is not even clear at this point what putting down money accomplishes. It is not like the individual gets back the 10 percent they put down if they go through their trial or even if they get acquitted. People get their bail revoked all the time because either they miss court appearances or they re-offend.
It’s not clear that bail provides any measure of accountability above OR or supervised OR.
The hang up, though, is that under the compromise, judges will have broad leeway to decide whether suspects should be held in custody prior to trial. Thus money will be replaced by the judgment of the judge.
This is where the ACLU parts company with supporting this law. They argue: “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.”
They believe that this simply will replace the monetary bail system with “an equally problematic system that may perpetuate racial biases and leave just as many people locked up before trial.”
The ACLU is not wrong here. The notion of judicial independence is a fine concept, but it does not exist in the real world. The message sent when Judge Aaron Persky was recalled from office this June, a few years after making what many considered to be an overly lenient ruling in a rape case, illustrates the kind of political pressure that judges face.
No judge is going to want to be the one who released the criminal into society, where they committed another more horrific crime.
Moreover, as we have pointed out through our court watch coverage, judges will very rarely overrule the DA’s office.
The ACLU would prefer a pretrial assessment system that is based on data collection and analysis that “allows independent analysis to identify racial bias in the system, supports the use of independent pretrial service agencies recognized as the best practice in pretrial justice, and ensures stronger due process protections for all Californians, no matter where they live.”
Ultimately, I think the ACLU is correct here. The new system will be better in that it will not be based strictly on ability to pay in most cases, but on actual risk assessment. But, while we may want to trust the integrity and honesty of judges upon whom we have bestowed a huge measure of trust and responsibility, we know from past experience that these judges will face political pressure and may in fact perpetuate an unfair system.
Where I differ with the ACLU here is not in dismissing their very valid concerns – but rather in my belief that this is better than the current system. If we simply oppose the good, we have turned the perfect into our enemy and allowed it to thwart our progress.
Rather, I would advocate we view this as a partial measure and hope we can analyze the new system and revisit it. I feel it will be much easier to tweak the new system than attempt to start from scratch all over again.
Thus I support SB 10 as an improvement over the old system and an elimination of the pernicious cash bail system, and hope to refine it in years to come.
—David M. Greenwald reporting
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David
A few questions for you:
Do you have access to the “tools” that counties will be choosing from in order to determine candidacy for release? Also when you say “the counties” will choose, who are the specific individuals who will be doing the choosing? Do you know why the county level was chosen as the determining level instead of the state ? It seems to introduce yet another arbitrary nature to how individuals are treated within the state.
Nevertheless, I agree with you that a step in the right direction is better than no step at all.
Right now each county sets a bail schedule. Though most California judges adhere to the current-year bail schedule, they have the power to raise or lower the defendant’s bail based on the nature of each crime and the circumstances of each individual case. The judges and the Judicial Council approve these schedules.
The counties would then determine how to assess risk in the same way. There are risk assessment tools used in places like SF Courts. For example, the Public Safety Assessment algorithm, developed by the Texas-based Laura and John Arnold Foundation, gauges a defendant’s risk of skipping town or reoffending before trial based on data including the person’s age, pending charge, prior convictions, and previous failures to appear in court.
Each county would have the discretion to set their own risk assessment probably in the same way they currently set bail schedules.
Why each county? Because right now each county has different bail schedules and policies, different specifics including space and standards for holding people in custody.
Is it arbitrary? Somewhat. I think that’s why the ACLU is pushing for more standardized risk assessment tools.
Thanks David.