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California eliminates cash bail and throws hundreds of years of judicial precedent out
File Photo
by Randall Lichner
Issue 169 - 09/20/2018
On August 28, Governor Jerry Brown signed Senate Bill 10 into law, eliminating cash bail beginning in late 2019. Under SB10, any person arrested on a felony charge would be eligible for release, without posting a cash bond, based on the results of pretrial screening to determine their likelihood of appearing for trial.

Bail reform advocates are split on SB10. For them it is a step in the right direction, because they believe too many defendants are stuck in custody because they simply cannot afford bail and once implemented SB10 will reduce racial disparities in the criminal justice system, reducing California's prison population.

Despite the apparent victory, the American Civil Liberties Union, who are involved with bail reform in more than 30 states across the country, decided ultimately to oppose the bill, because they believe SB-10 didn't go far enough, giving judges wide latitude to decide which defendants would be released and which defendants would remain behind bars. For Margaret Dooley-Sammuli, a senior strategist with the ACLU’s Campaign for Smart Justice, SB10 doesn't get there, because her organizations research indicates racial disparities are worse in jurisdictions where there is judicial discretion.

Opponents of the legislation like the California Bail Agents Association believe eliminating cash bail will put violent felons back into the community and reduce the chance they will appear in court. In response to the bill's passage, the CBAA has initiated the Repeal SB10 Petition, with the goal to put repeal on the 2020 ballot. Other opponents of SB10 include Crime Victims United, Black Lives Matter, and Human Rights Watch.

Facts don't support activist claims.
The Justice Policy Institute claims that by 2006 approximately 37 percent of felony defendants across the country are held in pretrial detention because they cannot afford bail or cannot obtain a bond from a bail bondsman. The Justice Policy Institute goes on to assert that money bail disproportionally impacts vulnerable minority communities and that statistically, those held in pretrial detention fare worse during their trials because they are largely viewed negatively by the jury, when they appear in prison garb and shackles. This theory discounts the fact that defendants who cannot afford money bail, also generally rely on a public defender at trial and may not receive adequate defense.

Digging into data available from the California Board of State and Community Corrections (BSCC), provides limited information because it excludes a query for the number of pretrial inmates being held or the number of inmates awaiting sentencing. Available BSCC data showed that during the month of January 2018, the total number of unsentenced inmates in California was 41,949. The data also shows that 3,818 pretrial defendants were released back into the community simply due to lack of housing capacity. The Public Policy Institute of California uses this inflated data to give the impression that on any given day 50,000 inmates are being held in California prisons simply because they cannot afford money bail.

Going back to available data, the California Department of Justice (CDOJ) provides interactive crime statistical data to the public. CDOJ records for 2017 show there were a total of 286,651 adult felony arrests across the state. Of those felony arrests, 104,187 were classified as violent offenses, 70,987 were classified as property offenses, 29,279 were classified as drug offenses, 4,896 were classified as sex offenses, and 77,302 were classified as other offenses.

Under SB10, approximately 100,000 felony defendants a year will be eligible for non-cash or non-bond pretrial release because they are accused of offenses classified as non-violent, including rape of an intoxicated or unconscious person, human trafficking of a child, abducting a minor for prostitution, felony domestic violence and solicitation to commit murder, among others. Under SB10, pretrial release determinations will classify these heinous crimes as non-violent to calculate the risk the defendant poses to society and the chance the defendant will skip out on their court date.

Based on the Justice Policy Institute claim that 37 percent of felony pretrial defendants are held in lieu of bail, the number of defendants being held in pretrial detention will be virtually unchanged because inmates accused of violent felonies will be ineligible for pretrial release. This fact destroys the argument that bail reform will reduce prison population. The only difference bail reform will make, is that those being released will not have to post bail.

Money bail a longstanding practice.
The concept of bail was first introduced into the United States Constitution with the ratification of the 8th Amendment, which states, "Excessive bail shall not be required, nor excessive fines imposed, nor cruel and unusual punishments inflicted." According to Cornell University Law School CRS Annotated Constitution, the 8th Amendment followed legal precedents in England's Statute of Westminster the First of 1275 and the Habeas Corpus Act of 1679.

In 1951 the United States Supreme Court decided that bail is excessive when it is set higher than an amount reasonably calculated to ensure the asserted governmental interest, which is to compel a defendant to appear for trial. Because of ambiguity, the issue of preventative detention, keeping a dangerous defendant locked up pending trial, wasn't addressed until 1984, when it was upheld by the United States Supreme Court.

Variation in pretrial release determination outcomes.
The prevailing bail reform argument is that people with financial resources do not sit in custody awaiting trial, while poor people do, and that this simple fact affected trial outcomes. Because the bail system was deemed unfair by activists, particularly to minorities targeted as a result of unconscious bias or systemic racism, it had to be overhauled to produce equality of results.

In 2016, the State of California created the Pretrial Detention Reform Workgroup to study current pretrial detention practices. This workgroup consisted of members of the Judicial Branch of California, led by Chief Justice Tani G. Cantil-Sakauye. The primary goal was to establish consistent and feasible practices for making pretrial release, detention and supervision decisions that made public safety the fundamental consideration.

The workgroup determined that the pretrial release decision was ultimately up to the discretion of the judicial officer, based on the results of a pretrial risk assessment instrument, based on case and defendant specific information, that calculated the risk a defendant poses if released before adjudication. This judicial discretion is what caused the ACLU to withdraw their support for SB10.

The problem California faces is that it currently does not operate a pretrial risk assessment instrument, and currently relies on the Ohio Risk Assessment System (ORAS) or the Virginia Pretrial Risk Assessment Instrument (VPRAI) to make pretrial detention recommendations. These systems are based on completely automated computer software, with a "decision making" formula based on data from pretrial outcomes in other cases. Once complete the current assessment is added to the database and becomes part of the data set, altering statistical probability in other cases going forward.

Until California's pretrial risk assessment instrument has enough data about trial outcomes, it will not be able to accurately predict the statistical risk probability. During that time, data added to the ORAS and VPRAI systems will corrupt Ohio and Virginia pretrial risk assessments. Until the California pretrial risk assessment data set is deemed reliable, judges will have to make determinations based on out of state pretrial detention software results, producing a variation of outcome, depending on which system is utilized and it's comparison to whatever risk instrument is developed in California.

The only winners are accused felons.
A pretrial release system already exists in 46 of 58 California counties and most judges already consider assessments in deciding terms of pretrial release. Floor Analysis of the identical Assembly version of SB10 found it burdens taxpayers with hundreds of millions of dollars in pretrial services, hundreds of millions of dollars in pretrial court expenses, and at least tens of millions of dollars to an unnamed agency to comply with the provisions of the bill.

Because pretrial assessments are already used and statistics show the same number of inmates are going to be held in pretrial detention anyway, SB10 unnecessarily burdens taxpayers with hundreds of millions of dollars in new costs, which include the development and operation of a California pretrial risk assessment instrument that could potentially take decades to properly predict which defendants should remain behind bars or which should be set free until their trial.

Thousands of jobs in California will be lost as the entire bail industry shuts down. The jobs range from clerical positions to private fugitive recovery agents who contribute about $500 million to the California economy annually. The California Bail Agents Association along with help from the American Bail Coalition have begun a campaign to collect 366,000 signatures to place a ballot measure to repeal SB10 on the 2020 ballot, but they face an uphill battle.

Victims of felony crimes will have to deal with the fear of knowing that the perpetrator of their crime is out on the streets awaiting trial and may have to deal with the potentially deadly repercussions of reporting the crime. Strangely, Crime Victims United of California, a non-profit victims advocacy group that opposed SB10 has not made a formal statement since it's passage, instead providing links from it's website to petitions to repeal the bill.

Because of the silence from victims rights advocates, the bail industry is left to stand alone in opposition to SB10. As a result, the only clear winners are accused felons.

Crime, Law and Justice   > Justice and Rights
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