A coalition of bail bond industry groups took a major step Tuesday toward blocking California’s historic overhaul of the bail system, submitting more than enough signatures required for a statewide referendum on the law in 2020.
If the signatures are verified by elections officials, the law signed by Gov. Jerry Brown in August would be suspended until voters decide whether to overturn it, allowing bail agents to continue doing business before the industry’s future in California is decided.
The effort to end cash bail has picked up critics on both sides of the issue.
Over the last two years, bail companies have been the fiercest opponents of efforts in Sacramento to overhaul how judges assign bail to criminal defendants while they wait for their cases to be resolved. The new law, which eliminates the payment of money as a condition of release from jail, is expected to decimate the earnings of bounty hunters, surety companies and about 3,200 registered bail agents in the state.
Civil rights groups that have supported the move to end cash bail have also criticized the new law. They are weighing their own options on how to shape its implementation by pushing for new judicial rules and legislative fixes.
Senate Bill 10 was slated to go into effect Oct. 1 of next year.
“This is a reckless attempt to reform the state’s bail system,” Jeff Clayton, a spokesman for the industry coalition, said in a statement. “SB 10 is the perfect example of last-minute deal-making by the governor, the Legislature and labor unions absent input from all stakeholders.”
Brown’s signature on SB 10 set the stage for abolishing the state’s money bail system, ushering in one of the most sweeping criminal justice reforms of his administration. Under the new law, counties will have to establish their own pretrial services agencies, which would use “risk-assessment tools,” or analyses, 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. Judges would have greater discretion to weigh the release of all other defendants in a practice known as preventive detention.
Top state officials, judges and activists have hailed the new law, which has put California at the forefront of a national push to stop courts from imposing a heavy financial burden on defendants who have not been convicted of a crime. But questions remain about its effect on the criminal justice system, and even some of its most passionate supporters worry it could lead to the incarceration of more people for longer periods.
The bail industry coalition seeking to block the law has raised at least $3 million for its referendum efforts, arguing it is in favor of some changes to the system, not a complete elimination of cash bail.
“Bail does provide an important judicial option for the pretrial release of defendants that comes with accountability, no cost to the taxpayers and a sensitivity to public safety,” Cesar McGuire, a coalition member and director of Bail Hotline Bail Bonds, said in a statement.
Unlike a ballot initiative, which gives California voters the chance to write a new law, a referendum asks them whether they want to overturn a statute written by lawmakers. The bail industry would be asking voters to cast a “no” vote on the ultimate ballot measure to ensure the law’s defeat.
The political action committee organized by the bail industry collected 576,745 signatures in a little more than two months, more than enough to qualify for the November 2020 ballot. Elections officials must now verify those voter signatures; if enough of them are valid, the referendum could officially qualify for the ballot before the end of December.
Greg “Topo” Padilla, president of the Golden State Bail Agents Assn., said bail agents are already feeling the hit to their businesses as counties across the state have started moving forward on new pretrial programs, replacing the cash bail system, ahead of the changes. He said bail companies haven’t ruled out legal challenges to the new law.
“This is not all about saving the bail industry,” he said. “This is about the taking away of a constitutional right [to bail] that people had, and now there is only one way out of jail, and that is if a judge decides to let you out.”
But backers of the state’s bail system overhaul have pledged to fight the move to block the efforts, saying they are ready to make their case in court and before voters.
“We knew this historic step forward for civil rights wouldn’t come easy, because it threatens the business model of a predatory and racially biased bail industry,” said Roxanne Sanchez, president of Service Employees International Union California and SEIU Local 1021. “We won’t stand by while mothers are forced into guilty pleas because there’s no one to care for their children while they wait in a jail cell to prove their innocence.”
On Tuesday, civil rights groups for the first time clearly distanced themselves from the bail industry’s referendum, though they opposed the overhaul after last-minute changes were made to the legislation.
“Make no mistake, the bail industry is not interested in equal justice or equal protection under the law, they are seeking to turn back the clock to protect their bottom line,” said Abdi Soltani, executive director of the American Civil Liberties Union of Northern California.
John Raphling, senior researcher with Human Rights Watch, said civil rights groups and activists are working to ensure the law is implemented in a way that doesn’t lead to higher levels of incarceration. They have been drafting legislative proposals to try to address concerns over judicial power and to weigh in on two new rules for courts set by the Judicial Council of California. One of those rules would guide how counties should use risk analysis tools, and the second would control how judges detain criminal defendants who are found to pose some risk of breaking the law again if released while their cases are pending.
Civil rights groups are also waiting for the state Supreme Court to review a ruling on a judge’s authority to set bail. If the court decides to drastically limit the discretion of judges to use preventive detention, most of the concerns with the new state law would be gone, Raphling said.
But “if [the referendum] qualifies, which it looks like it will, that changes everyone’s calculus,” he said.