California Gov. Jerry Brown has championed legislation and ballot measures downgrading drug crimes, expanding chances of early release for prisoners and easing punishment for juvenile offenders.
On Tuesday, he ushered in one of the most sweeping criminal justice reforms of his administration, signing a bill abolishing the state’s current money bail system, and replacing it with one that grants judges greater power to decide who should remain incarcerated ahead of trial.
The legislation virtually eliminates the payment of money as a condition of release. Under last-minute changes to the proposal, judges will have greater power to decide which people are a danger to the community and should be held without possibility of release in a practice known as “preventive detention.”
Brown first urged the Legislature to take on bail reform decades ago, calling it a “tax on poor people” in his 1979 State of the State address. 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,” Brown said in a statement.
The law, which will go into effect on Oct. 1, 2019, is expected to decimate the bail-bond industry, and many unanswered questions remain about how the shift will alter the criminal justice system.
“Some bail agents are talking about leaving California and going to other states because there are few, if any, state legislatures that would be this irresponsible,” said Sacramento bail agent Greg “Topo” Padilla, president of the Golden State Bail Agents Assn.
Supporters of the change — who include top state officials, judges, probation officers and civil rights groups — hailed what they called a shift away from a pretrial system based on wealth to one focused on public safety.
California Chief Justice Tani Cantil-Sakauye, who helped craft the new law through the formation of a judicial task force that spent a year studying the issue, described the money-bail system as “outdated, unsafe and unfair.”
“A person’s checking account balance should never determine how they are treated under the law,” Lt. Gov. Gavin Newsom said in a statement.
But the final bill didn’t satisfy some early backers, who complained that the final version of the legislation would allow judges to incarcerate more people, 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.
John Raphling, a senior researcher with the nonprofit Human Rights Watch, said the law replaced an unfair system with a potentially worse one, “empowering judges to take away our liberty based on biased algorithms and the judges’ own subjective choices, with no standards and no due process.”
Bail is currently set according to a list of fixed fees that depend on the gravity of the crime; amounts often vary widely by county.
Offenders are required to post the amount upfront, or pay a 10% fee to a bond company before they are released. Those who can’t afford the fee can remain incarcerated up to an additional 48 hours, or longer on weekends or holidays, before they are formally charged and arraigned.
Some argue that the system is prone to abuse by bail agents and bounty hunters who face little regulation or training requirements, putting vulnerable communities at risk of fraud, embezzlement and other forms of victimization. In recent years, complaints about the bail industry in California have significantly increased.
Under Senate Bill 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 procedure 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 high-risk offenders and all prisoners in the system.
Whether the new bail system 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 new law requires 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 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, which said that 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.”
On Tuesday, the ACLU called on lawmakers to ensure fairness in the pretrial justice system, and to address through new legislation potential racial bias in the new system’s risk-assessment tools.
Priscilla Ocen, a professor at Loyola Law School, said the new law would make California “a leader in terms of the abolition of money bail.” But she said it remained to be seen whether it would also reduce populations at overcrowded jails across the state, including in Los Angeles, home to the nation’s largest jail system.
“It might be to soon to declare victory,” she said. “I am very skeptical of this very current form of reform but I do hope that folks of goodwill will continue working on it.”
On the Senate and Assembly floors and in statements this week, state lawmakers stressed that the legislation was only the first step in overhauling the bail system.
“For too long, our system has allowed the wealthy to purchase their freedom regardless of their risk, while the poor who pose no danger languish in jail,” Assemblyman Rob Bonta (D-Alameda), who co-authored the bill, said Friday. “No more. Freedom and liberty should never be pay-to-play.”