Built into California’s landmark law to eliminate money bail and replace it with a risk-assessment process is a 13-month lag time before the new system goes into effect. That time should be used to identify additions or corrections that will ensure that the new pretrial system works properly, and to create protocols for courts and counties. The various criminal justice system players are working on their to-do lists. Here are some things to include.
Pass a data bill: A program of rigorous data collection and analysis was integral to early versions of the bail elimination bill but was left out as part of the bargain that allowed the measure to move through the Legislature and to the governor’s desk. The author, Sen. Bob Hertzberg, D-Van Nuys, has promised a follow-up bill early in the next legislative session to require data collection.
What data? A good bill would ensure that each decision in each courtroom to release defendants before trial and each decision to keep defendants locked up is noted and that enough information is collected to indicate the role of race, geography, gender and other factors. It would distinguish between a defendant’s perceived risk to the public, the risk of violating a technical condition of release such as keeping a job, and the risk of failing to appear in court. It would require analysis statewide to show any problems in the system, but also county-by-county, to show whether defendants in one area are being treated differently from those in another. That necessarily means standardizing data collection by every county.
Evaluate risk assessment tools: Some activists objected to the bail-elimination bill in part because it anticipates the use of computer algorithms or other tools meant to measure the riskiness of defendants. They fear that instead of merely wiping away whatever prejudices individual judges currently bring to their decision-making process, algorithms and similar tools may build in societal bias. For example, an assessment that considers the number of prior arrests a defendant has may discriminate against those living in more heavily policed neighborhoods. Many assessment tools are deemed proprietary by the companies that develop them, so the factors and programs they use can never be evaluated for fairness.
Lawmakers should adopt mandatory procedures for the Judicial Council to use in assessing and correcting biases in the risk-assessment tools that counties select. They also ought to consider permitting only those programs that lift their proprietary protections, so that they can easily be examined, evaluated and debated, not just by officials in a centralized process, but by activists and other members of the public. Business secrets must take a back seat to liberty and safety.
Tighten pretrial detention standards: There is at least one portion of the bail-elimination bill that should be revised. As it is written, prosecutors would be able to seek pretrial detention based on a poorly defined “substantial reason to believe” that it is necessary to protect the public or guarantee the defendant’s appearance in court. That’s too loose a standard. In line with the American principle that a defendant is to be treated as innocent until proven guilty, there should be a default presumption of release between arrest and trial. The burden should be on prosecutors to establish that pretrial detention is necessary for public safety.
Focus on county homework: Much of the real business of making post-bail California work properly must be done by boards of supervisors, and if they haven’t yet begun to understand their new responsibilities and rejigger their budgets accordingly, they had better catch up. They should define the pretrial services that their probation departments will perform, including non-law-enforcement work such as text reminders about court dates to increase the appearance rate. They should be exacting about required training and protocols for pretrial services staffs. They should ensure that pretrial services personnel identify at the earliest point in the process the non-criminal factors that may have contributed to the defendant’s arrest — mental health and public health problems, for example — so that they can divert from the criminal process those who should be treated by other parts of the county service system, or provide needed service to those who remain in the justice system.
Others, as well, have a responsibility for making the new bail-elimination law work. Judges will have to get used to a new level of scrutiny and transparency. Activists who are disappointed in the bill can be expected to monitor decisions in individual courtrooms to identify problems. Bail bondsmen should be monitored to ensure they don’t cover their future losses by exacting more money from their existing clients.