An initiative to replace the state’s cash bail system with a pretrial risk assessment system was signed into law by Gov. Jerry Brown on Aug. 28.
“Today, California reforms its bail system so that rich and poor alike are treated fairly,” Brown said in a statement.
Set to go into effect Oct. 1, 2019, Senate Bill 10 will eliminate the need for the bail bond industry, valued at $2 billion in annual revenues.
Cash bail refers to a fixed amount deposited with the court to release a suspect from custody on the condition that he or she will be present at future court hearings and trials.
Under the current system, California judges set cash bail for defendants, but when a defendant is unable to post bail, or promise to pay the full amount, they can pay a fee – typically 10 percent of the bail – to a bail bonds agency to post the bond, making the agency responsible for ensuring that the defendant is present in future court proceedings.
The cost of the bail varies with the severity of the crime and the court’s determination of the likelihood that a defendant will show up for trial. If the defendant shows up for their court date, the bail is refunded to the bail bond company, and it profits on the fee it collected from the defendant. If a defendant misses their court date, the bail bond company forfeits the bond, and an arrest warrant is issued for the suspect.
California Sen. Robert Hertzberg (D-Van Nuys) was a leading author on the bill to reform the bail system.
“A few years ago, I discovered that 63 percent of all the people in California jails are pretrial detainees – people not convicted of any crime but simply awaiting trial,” Hertzberg said in a statement. “The average bail in California is $50,000. If you can post it, you get out. If you can’t, you sit and rot in jail for what can be months. To me, that is justice based on wealth and it’s not fair.”
The new system will assess the risk of individuals at three tiers via a “risk assessment tool” taking into account various factors to inform judicial decisions.
Likely a computer-generated algorithm, the particular tool used will vary from county to county, and it will require the approval of guidelines put in place by the Judicial Council, the policy-making body of the California courts, according to Katie Hanzlik, Hertzberg’s press secretary.
Low-risk defendants will likely be released after making a written promise to return to the court, leaving judges to determine conditions for release, such as supervision and travel restrictions, whereas high-risk individuals – charged with murder, among other first-degree felonies – will likely remain in detention until trial. The fate of medium-risk defendants will be subject to local standards.
Individuals arrested or detained for misdemeanors will be booked and released without being required to submit to risk assessments, with some exceptions.
Also introduced in the bill was the ability for prosecutors to file for a “motion of preventive detention” to block a defendant’s release before trial.
With about $15 million in startup costs, the bill will allocate $200 million per year from the state’s General Fund to run the program on an ongoing basis, according to Hanzlik.
Despite the bill’s intentions, it has received negative feedback from law enforcement, civil rights nonprofits, criminal attorneys and – to no surprise – bail bond business owners across the state.
In response to criticisms of the bill, Hertzberg said, “Not acting would have maintained the status quo, which already keeps poor people and people of color in jail indefinitely. Under SB 10, there will be no financial conditions for freedom.”
In opposition, District 4 Calaveras County Supervisor Dennis Mills called SB10 “an unfunded mandate to the county.”
While in favor of eliminating cash bail, Calaveras County Chief Probation Officer Samuel Leach expressed concern with the bill, as the Probation Department will be required to have probation officers work on weekends to comply with the 24-hour assessment after booking requirements.
“It will be very difficult for small counties to comply with that part of the bill,” Leach said. “We are still in the process of evaluating how SB 10 will affect us because there are still a lot of unanswered questions about what terms of supervision will be allowed, how much money will be allocated to our county and what our local Superior Court will require from Probation.”
Leach said the department is already preparing pretrial assessments, using state SB 678 funding.
“We expect to continue preparing assessments, so the most significant changes will probably surround how we supervise people released on pretrial supervision,” Leach said.
Leach is unsure of the ultimate cost, yet is certain there will be “indirect costs and impacts to other departments, such as the district attorney and sheriff.”
Angels Camp Police Chief Todd Fordahl opposed the bill for many reasons.
“Personally, I believe that this legislation further undermines our criminal justice system, and seems to be following a disturbing trend that, practically speaking, are attempts by the current administration to eliminate any accountability for criminal behavior,” Fordahl said. “I also believe that this particular bill will further clog an already overburdened court system, requiring the courts to come up with their own review and administrative procedures related to the language in the bill. A simple question: if it isn’t broken, why fix it?”
Fordahl wants to assure the public that “despite this administration’s ongoing trend toward ignoring victims and their rights, (local law enforcement) are committed to serving and protecting the public they serve.”
Though SB10 has been signed, Calaveras County Sheriff Rick DiBasilio is cautious about putting the cart before the horse, as many factors will come into play before October 2019, such as the gubernatorial election, as well as the question of whether the bill will remain in effect or intact.
“I do know that the California (State) Sheriffs’ Association is opposed to the bill,” DiBasilio stated.
That association joins the ranks of many opposed to SB10, including the American Civil Liberties Union of Northern California and multiple law enforcement agencies.
Jessica Farris, ACLU of Southern California director of criminal justice and drug policy, criticized the exceptions for misdemeanors as being too broad, ultimately giving judges too much discretion in deciding whether to detain or release a defendant in the time leading up to trial.
Robin Steinberg, CEO of the Bail Project, a nonprofit with the goal of “combatting mass incarceration at the front end by paying bail for tens of thousands of low-income Americans at risk of pretrial detention,” criticized the lack of transparency with the proposed “pretrial risk assessment tool” in a USA Today opinion piece published on Aug. 28.
“Rather than closely assessing the strength of the evidence in the case being presented, these computer models use algorithms to assess, among other things, how someone’s age, employment, drug use and criminal history will influence whether he might flee or commit a crime before trial,” Steinberg wrote. “Before someone is held in a jail cell pretrial, prosecutors should be required to produce real, objective evidence at an adversarial court hearing that grants the accused rigorous procedural protections, including the right to cross-examine prosecutorial witnesses and call witnesses and, of course, the right to have a lawyer by your side.”
Concerned that the bill would be an expansion of power for judges and prosecutors in pretrial proceedings, University of California, Berkeley, School of Law professor Erwin Chemerinsky wrote in a Sacramento Bee op-ed on Aug. 20, “The revised version of SB10 gives judges unfettered discretion in deciding whether to keep a person in jail and has no mechanisms for monitoring the racial impact of these decisions.”
Chemerinsky emphasized that the bill has no criteria for how risks are to be determined, which gives judges total discretion to decide whether to release an individual and on what conditions. The key concern is that judges will “over-predict dangerousness,” Chemerinsky argues, as they could be subjected to criticism and recall for releasing a person who then goes on to commit a serious crime in the time before trial.
The bail bond industry is using every weapon in its arsenal to repeal the new bill.
The American Bail Coalition (ABC) has started collecting signatures for a referendum to overturn SB10. The organization will need 365,880 signatures before Nov. 26 in order to place the issue on the November 2020 ballot.
“ABC is very optimistic that we will exceed the signature requirements, considering the wide-range of opposition to Senate Bill 10 from so many organizations – many of whom originally supported SB10 prior to the bill being gutted in the final hours before passing,” ABC Administrative Director Chris Blaylock told the Enterprise in a recent interview. “Should SB10 be overturned, ABC’s desire is to continue to work with the California Legislature and all stakeholders to help craft more meaningful legislation that promotes public safety, due process and does not infringe on the basic civil liberties of defendants.”
Copperopolis bail bondsman Jay Lange closed down his business, American Eagle Bail Bonds, and moved out of the state two years ago when the bill was first introduced.
Eliminating cash from the bail system will lead to an increase in pretrial incarceration and over-crowding of jails, which will subsequently result in higher crime rates with jails forced to release misdemeanor offenders that would have otherwise been left in detention, according to Lange.
“There will be more crime on the streets,” Lange said. “Once these people are released, they won’t come back to court; it was our money on the line to return them.”
Another criticism is that the bill will give judges the ability to hold “high-risk” individuals without giving them the ability to present bail, according to Brenda and Bob Yeadon, owners of Jailbird Bail Bonds in Murphys for nearly a decade. These charges are deemed “violent crimes,” making the accused ineligible for own-recognizance (OR) or citation release, Brenda Yeadon said.
“If cash bail is eliminated, people in a situation like this will be unjustly punished,” Yeadon explained. “If said person got arrested on Friday night and the following Monday was a holiday, they would spend several days and nights in jail awaiting the arraignment. We have experienced cases of a defendant needing bail due to acute health, work, business or family needs. It is especially rewarding to have been able to help in these situations where it is already apparent that they are not the culprit. These defendants are grateful for the right to bail and never blink an eye about having paid (a) premium for the bondsman’s service.”
Yeadon also mentioned that the bail industry has made several proposals on reforming the bail system over the past two years, including lowering the bail schedules to make them more affordable, eliminating bail stacking (adding multiple bonds together to increase bond amounts), and expanding the group of people that come up with the bail schedules to ensure a fair process. These proposals have been ignored by those trying to reform the system, Yeadon said.
The Yeadons will be forced into full retirement if the ABC referendum fails, though they will keep their doors open until October 2019.
“We will invest in continued education and licensing in order to provide bail bonds to this community until such time as the outcome is certain,” Brenda Yeadon said.