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August 29, 2018

California becomes first state to completely do away with money bail

Though bail is not technically a sentencing issue, the nationwide debate over bail practices has lots of echoes into sentencing and is certainly an important element of wider criminal justice reform movements. Consequently, it seems worth noting this news via the Los Angeles Times under the headline "California Gov. Jerry Brown signs overhaul of bail system, saying now 'rich and poor alike are treated fairly'." Here are some of the details:

California Gov. Jerry Brown on Tuesday signed a landmark bill to overhaul the state’s money-bail system, replacing it with one that grants judges greater power to decide who should remain incarcerated ahead of trial.

The two-year effort fulfills a pledge made by Brown last year when he stalled negotiations over the ambitious legislation, saying he would continue to work with lawmakers and the state’s top Supreme Court justice on the right approach to change the system. The new law puts California at the forefront of a national push to stop courts from imposing a heavy financial burden on defendants before they have faced a jury. “Today, California reforms its bail system so that rich and poor alike are treated fairly,” he said in a statement.

Senate Bill 10 would virtually eliminate the payment of money as a condition of release. Under last-minute changes, judges would have greater power to decide which people are a danger to the community and should be held without any possibility of release in a practice known as “preventive detention.”

Top state officials, judges, probation officers and other proponents of the efforts lauded the new law. Co-authors Sen. Bob Hertzberg (D-Van Nuys) and Assemblyman Rob Bonta (D-Alameda) called it a transformative day for criminal justice, and a shift away from a pretrial system based on wealth to one focused on public safety.

Chief Justice Tani Cantil-Sakauye, who helped craft the legislation through the formation of a judicial task force that spent a year studying the issue, described a three-branch solution to address a money-bail system that “was outdated, unsafe and unfair.”...

But the historic passage of the bill has been bittersweet for lawmakers, as opponents — including some of the bill’s most ardent former supporters — argued the final version of the legislation would allow judges to incarcerate more people based on subjective criteria, and did not include enough oversight over risk-assessment tools found to be biased against communities of color.

“No one should be in jail because they are too poor to afford bail, but neither should they be torn apart from their family because of unjust preventative detention,” said a statement from American Civil Liberties Union directors Abdi Soltani in Northern California, Hector Villagra in Southern California and Norma Chávez Peterson, representing San Diego and Imperial counties....

Under SB 10, counties would have to establish their own pretrial services agencies, which would use “risk-assessment tools,” or analysis, to evaluate people arrested to determine whether, and under what conditions, they should be released. Only people charged with certain low-level, nonviolent misdemeanors — a list of charges that can be further narrowed by county — would be eligible for automatic release within 12 hours of being booked into jail.

All others arrested would have to undergo the risk analysis, a system that would sort defendants based on criminal history and other criteria into low-, medium- or high-risk categories. Courts would be required to release low-level defendants without assigning bail, pending a hearing. Pretrial services offices would decide whether to hold or release medium-risk offenders. Judges would have control over all prisoners in the system.

The new law, which will go into effect on Oct. 1, 2019, is expected to decimate the bail industry. Whether it will lead to higher incarceration rates is unknown because courts don’t track the data that would make such an analysis possible, lawmakers have said. But the law will require courts to collect and report incarceration rates and undergo in 2023 an independent review of the legislation’s impact on the criminal justice system.

Still, in the days before its passage, some criminal-justice-reform groups that once supported the bill worked to kill it, landing on the same side as a bail industry that has worked to sink the bill from the beginning. This week, a delegation of criminal-justice-reform advocates from across the state sent a veto letter to Brown.

The bill “sets up a system that allows judges nearly unlimited discretion to order people accused of crimes, but not convicted and presumptively innocent, to be held in jail with no recourse until their case is resolved,” the letter stated.

August 29, 2018 at 01:06 AM | Permalink


Sounds like a move to what the federal system does (Bail Reform Act of 1984) - I understand their concerns nonetheless - but in the long run, I'd rather detain someone over the risk of public safety rather than because they can't afford bail...

Posted by: atomicfrog | Aug 29, 2018 7:56:02 AM

Overall, the federal system is more fair than states with cash bail, so to the extent this bill moves California in that direction, it's a good thing. But I do worry about elected state judges being the decision makers about pretrial detention, especially in California, which recently saw a judge recalled by the voters for being too lenient toward a criminal defendant.

Posted by: Anon AFPD | Aug 29, 2018 11:40:46 AM

Good point Anon AFPD - big difference between federal (appointed for life) and state Judges (elected).

Posted by: atomicfrog | Aug 29, 2018 1:12:07 PM

I'm hopeful but skeptical. I suspect that in the future poverty will be a public safety risk: can't trust those poors to do the right thing and show up for trial.

Posted by: Daniel | Aug 29, 2018 5:57:57 PM

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