Get Informed

Regular updates, analysis and context straight to your email

Close Newsletter Signup

California could soon end money bail, but at what cost?

The passage of Senate Bill 10 would decimate the bail industry, but many advocates say it falls short of true reform.

California Assembly Member Rob Bonta (D-Alameda) discusses the bill at a recent press conference.

California could soon end money bail, but at what cost?

The passage of Senate Bill 10 would decimate the bail industry, but many advocates say it falls short of true reform.

This week, California took a major step toward eliminating cash bail and dealing a significant blow to the predatory bail bond industry when Senate Bill 10, which would replace cash bail with a risk-based system, passed the state Assembly and Senate. It appears almost certain that Governor Jerry Brown will sign it into law.

While some bail reform advocates hailed the victory as a milestone, others say the bill could actually increase the number of people detained pretrial.

“The new version essentially replaces the evils of money bail with a worse evil known as preventative detention,” San Francisco Public Defender Jeff Adachi wrote in an editorial in the Sacramento Bee that blasted the legislation. “This is not the bail reform California needs.”

In earlier drafts of the bill, all defendants would have appeared before a judge with a presumption of release. To detain someone, prosecutors would have had to make a case with convincing evidence that there was no way to release the person while ensuring his or her next court appearance and protecting public safety.

This month, however, a new draft of the legislation began making the rounds that vastly altered its vision and scope. While abolishing cash bail and mandating the release of most people arrested for nonviolent misdemeanors within 12 hours of being booked, the new draft gives county judges wide-ranging discretion over which defendants deemed “medium risk” could be detained pretrial.

The bill also creates broad categories of defendants who could legally be detained without prosecutors having to make an argument about why. Under the current system, even those charged with serious crimes have the presumption of release, albeit often with bail attached. Under the new system, these categories of defendants would automatically be presumed for “preventive detention” instead, flipping the burden of proof onto defense attorneys, who could still argue for their release. The categories include individuals charged with violent felonies, anyone convicted of a violent felony within the past five years, anyone deemed by a risk assessment tool as a “high risk” to public safety, or anyone on supervised probation.

Supporters of the current bill believe the changes were necessary to gain support from both the state’s Judicial Council, the rule-making arm of the California court system, as well as Governor Brown, who had pegged his support of a bill to whether the state’s judges were behind it. The Judicial Council, in a report released last October, called for an increased discretionary role for judges in determining who could safely be released. The Judicial Council and county courts across the state now will have until Oct. 1, 2019, to implement the new system.

“Ultimately the Judicial Council and the chief justice got the pretrial structure that they wanted,” said Anne Irwin, director of Smart Justice California, an advocacy organization that once supported the bill but has now taken a neutral position. “We know their support mattered immensely for Governor Brown.”

Yet the current bill is a grave disappointment to many advocates who initially fought for the legislation. Within days of the new draft’s circulation, groups like Human Rights Watch, the California Public Defenders Association, and the NAACP dropped their support. On Monday, the ACLU, after taking a neutral stance toward the altered legislation, shifted its position to one of opposition.

Chesa Boudin, a deputy public defender in San Francisco who has worked on litigation challenging cash bail in the state and who was on the advisory committee to the drafters of the original bill, says the new bill penalizes people regardless of guilt, not unlike the bail system it was intended to replace. “It creates a system where, by law, California would punish people just for being arrested, rather than waiting until they’re convicted of a crime.”

Advocates are also concerned about the role of risk-assessment tools, which help judges weigh a person’s likelihood of absconding or posing a threat to public safety. A previous draft of the bill used risk assessments to determine a defendant’s conditions of release (such as where the person could travel or whether he or she had to wear an ankle monitor). In the bill that passed the legislature, these tools could be used by judges to determine whether a person should be released. While that’s not uncommon around the country, it is often contested. Many reform advocates argue that risk assessments rely on data, such as employment and criminal history, that’s tainted by discrimination. In communities of color that are overpoliced, for example, there are likely to be more people with prior arrests.

The Superior Court in each county will be allowed to choose their own risk-assessment tools from a list approved by the Judicial Council and decide independently which charges should automatically result in detention hearings, which could lead to huge variations across the state. Statewide, most defendants who have been given a “low risk” designation by the risk-assessment tool will be automatically released.

“The fate of pretrial incarceration in California is now in the hands of judges,” Irwin said.

While that leaves many unknowns, Irwin says, there are reasons to worry. Earlier this year, Judge Aaron Persky was recalled after he handed out what was regarded as a “lenient” sentence to a man found guilty of sexual assault. It was the first judicial recall in California in more than 80 years, and Irwin says it may cause judges to think twice before choosing less punitive options for defendants.

“Right now, judges, for the first time are looking over their shoulders, and when they exercise their discretion to give what is perceived to be leniency to defendants, they now risk losing their jobs,” Irwin told The Appeal. “You have to question the theory that judges are going to exercise the discretion given to them by SB 10 in a way that actually releases more defendants pretrial.”

She said judges could also be motivated to keep defendants detained in order to better manage caseloads—the longer people are detained, the more likely they are to take a plea deal. In addition, if a judge wants to schedule a hearing on short notice, the defendant can readily be produced in court.

The question of whether risk assessments are a reasonable trade-off for bail reform is complicated. In New Jersey, whose jail population dropped 20 percent after it abolished cash bail in 2017, judges use analytic tools to inform their decisions about pretrial release, though state law ensures that a relatively broad group of defendants are given the presumption of release.

Informed by an algorithm or not, judges still bear the most responsibility for deciding who should be released, argues KiDeuk Kim, a senior fellow in the Justice Policy Center at the Urban Institute who has studied the use of risk assessment programs across the country.

“The tool is meant to help with resource allocation,” Kim said. “[Judges] can decide who to put in jail or release to the community depending on their ability to supervise them in the community. It depends on the jurisdiction’s capacity … [the judges] can decide the threshold.”  

In some other cities that have restricted the use of cash bail, judges have been reluctant to take chances. In Baltimore, the jail population rose between March 2017 and March 2018 after judges were instructed not to set bail for people who couldn’t afford it beginning in January 2017. Instead of releasing arrestees without monetary conditions, however, judges opted instead to detain more people.

Reformers fear the same rise in detention could happen in California.

The bill still faces stiff opposition not only from former supporters, but from the state’s law enforcement and bail bond lobbies, for different reasons. California’s bail industry stands to lose hundreds of millions of dollars per year. The median bail amount in the state is $50,000 dollars, over five times that of the rest of the country.

“We’ve slayed one big dragon,” Irwin said. “The predatory bail industry will … in effect be eradicated, as well as wealth-based detention. The most laudable victory here is one of economic justice, and that is a giant step forward.”

Both the bill’s supporters and opponents are committed to improving it. Some advocates and lawmakers are already working on legislation to improve its data collection mechanisms, and root out the racial bias often inherent in risk assessments.

“There is a lot of additional work to be done as it related to how this bill will be implemented,” said Lenore Anderson, executive director of Californians for Safety and Justice, an organization that supported the bill through its passage. “The implementation process will be key in developing how the new pretrial system unfolds. … We are going to be actively engaged and involved, and rolling up our sleeves to make sure that the goal that we all want is achieved, which is a fair pretrial system and reducing unnecessary incarceration. ”

Notoriously Brutal, Racist Plainclothes Policing Makes A Return In Baltimore

After the Gun Trace Task Force scandal rocked the police department, plainclothes policing was spurned. But a recently resigned commissioner championed plainclothes units, a decision the department seems to be sticking with.

Former Baltimore Police Commissioner Darryl De Sousa, April 26, 2018.
Baltimore Police Department

Notoriously Brutal, Racist Plainclothes Policing Makes A Return In Baltimore

After the Gun Trace Task Force scandal rocked the police department, plainclothes policing was spurned. But a recently resigned commissioner championed plainclothes units, a decision the department seems to be sticking with.

“The number one thing you will see,” Baltimore’s new police commissioner Darryl De Sousa promised at his introductory press conference earlier this year, “is more police officers on the streets in the community in uniform. They are going to do proactive, constitutional policing.”

De Sousa’s announcement about an increased uniformed police presence came in the wake of former commissioner Kevin Davis’s decision in 2017 to disband the department’s plainclothes units because of the arrests of seven members of an elite squad of Baltimore Police Department officers known as the Gun Trace Task Force, or GTTF, on federal charges of robbery, theft, extortion, and drug sales. The GTTF was one of the many “proactive” specialized units tasked with targeting gun offenders and violent crime generally. Without the task force on the street, gun arrests in the BPD’s Operational Intelligence Division (OID) plummeted by nearly 70 percent from the unit’s indictment in March 2017 through November.  

The indicted GTTF officers either entered guilty pleas or were convicted at trial. The loss of these elite officers as well as the purported decline of their style of proactive policing has been lamented by cops and criminologists alike as a driver for the increase in the murder rate in post-Freddie Gray Baltimore. In 2016, Peter Moskos, a professor at John Jay College of Criminal Justice told Time magazine, “There was less proactive policing, criminals were not being confronted by police routinely, and violence and murders went up.” A recent USA Today article, which also quoted Moskos, pointed to the decrease in officer initiated actions between the years 2014-17 as a sign police were being less proactive in Baltimore City.

Such stats—and a rise in violent crime—led Mayor Catherine Pugh to fire Davis and replace him with De Sousa, a champion of proactive policing, in January. So in addition to considering a return to plainclothes policing, De Sousa created the Mobile Metro Unit, also referred to as the “10th district.” (Baltimore has nine permanent patrol districts.)  The officers in the Mobile Metro Unit wear full uniform and drive marked police vehicles, but they don’t operate as normal patrol officers who perform tasks like answering radio calls and taking reports. Instead they are deployed to “hot spot” areas known for violence and drug dealing, and they respond to shootings or homicides. This is the same function plainclothes units served prior to being disbanded.

Then, in April, De Sousa created a new plainclothes unit called the Anti-Crime Section, which comprises  two sergeants and 12 officers divided between the east and west sides of Baltimore. The public learned about the Anti-Crime Section only last month, after one of the unit’s sergeants, Larry Worsley, was arrested for a DUI-related accident in an unmarked departmental vehicle while he was off duty. (In May, De Sousa resigned after being hit with federal charges for failing to file tax returns; the department is now headed by Interim Commissioner Gary Tuggle). 

Plainclothes cops like the Anti-Crime Section or the GTTF before them are known as “knockers” and “jump out boys.” They wear street clothes and tactical vests emblazoned with POLICE on the back and they patrol hot spots. Jump out boys are exactly what the name implies: a group of plainclothes cops who will pull up to a corner full of people, jump out of their vehicle and search them. Their tactics and style of policing have a notorious history in Baltimore. One of the GTTF’s favorite tactics, for example, was the “door pop,” which meant driving an unmarked vehicle quickly toward a group of people, slamming on the brakes, popping open the doors and then chasing anyone who ran. When GTTF members Daniel Hersl and Marcus Taylor went to trial in federal court in January on charges including racketeering and robbery, one detective testified that the unit would conduct door pops up to 50 times a night.

De Sousa’s plainclothes Anti-Crime Section proves that proactive policing hasn’t disappeared even after De Sousa’s resignation in May when he was charged federally for failing to file tax returns (the department is now headed by Interim Commissioner Gary Tuggle.) Indeed, after “disbanding” plainclothes units after the GTTF scandal, Davis created new uniformed specialized units called District Action Teams (DAT). There are DATs assigned to each of Baltimore’s nine police districts. Baltimore’s police districts and their focus remains on gun arrests, so the units were new in name only. Before they were referred to as DAT, the district units were known as “flex squads.” Flex squads, which operated in plainclothes, were a source of serious misconduct allegations for over a decade. In June 2009, Detective Jemell Rayam, later one of the indicted GTTF officers, was assigned to the Northern District flex squad when he was accused, along with two other officers, of stealing $11,000 in cash during a car stop.  In July 2013, Abdul Salaam accused two members of the Northeast flex squad, Nicholas Chapman and Jorge Omar Bernardez-Ruiz, of beating him up after a traffic stop. Seventeen days later, Chapman and Bernardez-Ruiz were present when Tyrone West died during a struggle with police who attempted to arrest him after a traffic stop. The officers didn’t face criminal charges for either incident and were cleared by internal investigators of any policy violations. So simply placing officers like Chapman back into uniform didn’t change their tactics. The problem is the officer wearing the uniform, and perhaps the institution of policing itself, not the uniform (or lack thereof).

When I was a police officer in Baltimore, I worked in a proactive specialized unit called the Special Enforcement Team (SET) from 2006-08. The unit was made up of two uniformed and two plainclothes squads. We were encouraged to make as many arrests as possible during our shifts. The ultimate goal was a gun arrest, but a high quantity of any arrests would do. One summer night I arrested 10 men at once for trespassing on the steps of two vacant rowhomes, city-owned properties marked “No Loitering/No Trespassing.” Police officers have wide discretion in dealing with many crimes, especially minor ones,  so I could have issued these men citations, or done nothing at all. But when I worked with SET, I felt pressured to make as many arrests as possible. We stopped just about every adult we saw on the street to check their names for open warrants. We conducted car stops with the intended goal of searching the vehicles. Most of our car stops were done at night, since that’s primarily when we worked, so we would look for minor infractions like broken headlights or tail lights. The most common reason we used to search a vehicle was the “freshly burned scent of marijuana.”  Later in my career, from 2013-16, I was an Internal Affairs detective and I investigated officers in these specialized units for misconduct allegations like the planting of evidence, lying in search warrants, excessive force, and theft. Shortly before leaving Internal Affairs, I handled a case against an officer who would later be arrested as part of the GTTF. In March 2016, the GTTF’s Wayne Jenkins confronted me in the parking lot of the Internal Affairs office over another officer I was investigating. That officer was later terminated.

Like the GTTF, earlier iterations of units like De Sousa’s Anti-Crime Section were involved in troubling incidents. In 2013, Detective Kendall Richburg of the Violent Crime and Impact Section (VCIS), another plainclothes unit, was indicted on federal gun and drug charges. On a wiretapped phone call, Richburg discussed planting evidence and setting up people to be robbed—a precursor to the GTTF scandal. Just before Richburg’s arrest the unit was renamed the Special Enforcement Section (SES), but retained many of the same officers. VCIS had come to the attention of the city council because of their tactics and volume of complaints.  One of those officers was Fabien Laronde, who had a well-documented history of alleged misconduct including a questionable shooting, stealing, and witness intimidation. He was the subject of civil lawsuits alleging illegal strip searches, assault, and even illegally detaining a man inside a courthouse. BPD terminated  Laronde in 2016. Before his firing, Laronde said of the complaints against him that “it goes along with the type of proactive work I do.” And before his assignment in the Anti-Crime Unit and his recent arrest, Larry Worsley was a District Action Team supervisor; he also worked with Wayne Jenkins of the GTTF and Laronde in the SES. On July 25, the police department announced the arrest of Officer Spencer Moore, once a colleague of Richburg’s in VCIS, on drug trafficking charges.

These units operate the same way: Small groups of handpicked officers, who are expected to be aggressive and proactive, target high-crime areas of Baltimore and produce a large amount of stops, arrests, and gun seizures. This is “proactive” policing, and no matter what acronym the BPD comes up with, the tactics don’t change. Unfortunately for the community, neither do many of the officers.

More in Explainers

It Is Now Even Harder for Trafficking Survivors to Get Visas

Local advocates are struggling with a new immigration memo that makes it more difficult to support these survivors.

Activists protest President Trump's immigration policies.
Spencer Platt / Getty

It Is Now Even Harder for Trafficking Survivors to Get Visas

Local advocates are struggling with a new immigration memo that makes it more difficult to support these survivors.

Rita (not her real name) had gone looking for help. She’s 29, living in Northern California, an immigrant from Honduras, who graduated as a professional makeup artist. “I’m not scared of driving, because I have my driver’s license,” she told The Appeal through a Spanish interpreter. She wants to stay in the United States, and she had a way to do that, she thought—and it was connected to something that happened to her which she would rather not talk too much about.

Almost three years ago, Rita told The Appeal, she was threatened and forced to work for someone in the drug trade. “Sometimes, you come, and you’re very ignorant and you don’t know what’s going on, and you fall into the hands of people who take advantage of you,” she recalled. “I was a victim of that, of that kind of trafficking.” During that time, she said, she was also arrested on drug-related charges.

Later, Rita learned that as a trafficking survivor she could get protection and benefits, including a special visa that would allow her to stay in the United States, where she has been living for 11 years.

But Rita said she is afraid to apply. “There was a time I was going to apply for the visa with the help with the lawyers. It’s not possible now.” Under a set of new Trump administration policies issued in June, if U.S. immigration authorities denied her application, Rita would be referred to removal proceedings. Instead of getting help, she could be deported.

Rita is a client at Asian Pacific Islander Legal Outreach, a legal aid nonprofit in the Bay Area. The organization helps people apply for the T visa, created in 2000 for survivors of trafficking, offering them the same federal benefits as refugees, from housing to health care to education. Until June, applicants could expect that their applications would be kept confidential, and that if they were unsuccessful, the application would not result in them being considered for removal from the country.

That has changed, beginning with President Trump’s crackdowns on what he has called “criminal aliens.” Immigration authorities are now aligning their policies with his executive orders, prioritizing more people for removal. In this case, that extends to immigrants who the government had previously regarded as victims of crimes. Now immigrant trafficking survivors are left with these choices: risk deportation by applying for the T visa and being denied, or risk deportation by not applying at all.

It was never easy to get a T visa, advocates and attorneys who spoke to The Appeal pointed out. When Congress passed the Trafficking Victims Protection Act of 2000, it restricted the number of T visas to be issued each year to 5,000. The cap has never come close to being met. Though more and more people have applied for the visas, in the last 10 years the number of applications submitted has exceeded 1,000 per year only twice. Yet there is a growing backlog of pending T visa cases.

According to U.S. Citizenship and Immigration Services (USCIS) data, as of the end of March 2018, there were 1,541 trafficking survivors with pending T visa applications. Between October 2016 and September 2017, more than 1,100 trafficking survivors applied for a T visa. Of those, 672 were awarded and 226 were denied, and the number of pending applications exceeded the number of new applications. (The approvals and denials could also have been applicants from the previous year; the average wait time for a T visa, according to USCIS, is 10 to 13 months.)

The most recent data USCIS made available suggests that even though applications are coming in at a similar pace, fewer trafficking survivors are getting T visas. As of March, the percentage of T visa applicant approvals was declining compared with 2017—from around 33 percent to 16 percent.

Though Congress created the T visa, its administration is governed by a series of policy memos and guidance issued by U.S. Citizenship and Immigration Services, part of the Department of Homeland Security.

Before June, immigration authorities’ guidance had been more clear and offered more protections to immigrant survivors: “USCIS does not have a policy to refer applicants for T nonimmigrant status for removal proceedings absent serious aggravating circumstances, such as the existence of an egregious criminal history, a threat to national security, or where the applicant is implicit in the trafficking.” That is, barring those few circumstances, USCIS would not alert ICE about T visa applicants who were denied.

But a June 28 memo supersedes that. “USCIS will issue an NTA”—a notice to appear, the beginning of deportation proceedings—“where, upon issuance of an unfavorable decision on an application, petition, or benefit request, the alien is not lawfully present in the United States.”

This will apply to those filing new T visa applications, and to those whose applications are pending—as well as those seeking other kinds of special visas, like the U visa for victims of crime. In making this change, USCIS cites compliance with President Trump’s January 2017 executive order, calling for “removal of criminal aliens.”

No clients of the groups that The Appeal spoke with have been removed; the policy is most likely still too new. But they are already feeling the chilling effect. Saerom Choi, a project manager for Asian Pacific Islander Legal Outreach, said most of of its clients are Spanish speakers from Mexico or Central America, along with a large population from the Philippines. They may be trafficked into construction, domestic labor, restaurant work, the drug trade, or the sex trade. “For folks caught up in being criminalized, either being forced into the drug industry or having been exploited in the sex industry,” said Choi, “it’s giving those clients and folks some hesitance in moving forward.”

Advocates must now be extra careful in the recommendations they make to their clients. But an additional memo, released in July, has added an extra element of risk and unpredictability to the process. This memo gives USCIS more discretion in making a denial by choosing not to ask applicants for additional information to strengthen their case.

In the past, applicants with criminal convictions were often flagged and given a “request for evidence,” or RFE. “Particularly in drug-related trafficking cases,” Choi noted, “there’s been a trend for USCIS to ask for more evidence to show that there was actually trafficking that happened. With the recent memo saying they have the discretion not to issue requests for additional evidence that’s concerning to us.” If immigration authorities decide to just move on and not seek more evidence, that could lead to applicant’s denial—and now, their removal.

Along with those trafficking survivors with past criminal convictions, those who crossed the border in the course of their trafficking situation have faced increased scrutiny, said Erika Gonzalez, training and technical assistance senior attorney at the Coalition to Abolish Slavery & Trafficking (CAST) in Los Angeles.

On average, said Gonzalez, CAST files 75 to 100 T visa applications each year—or about one-tenth of all T visa applications. The organization also provides technical assistance to attorneys nationwide, and through that it can review cases and assess trends in requests for evidence and denial. “What we are seeing through our document reviews is a lot more denials on ‘credibility’ issues,” Gonzalez said. Those could be cases where USCIS says an application doesn’t match up with the rest of the applicant’s immigration record, particularly in cases in which a survivor was detained at the border. But there are reasons that what someone who is trafficked says might also change over time, she said. “We’ve seen them picked up with their traffickers,” Gonzalez said. “We’ve seen them just scared. … Or they never told anyone.”

In the past, she said, she could advise clients—including those who may have cases involving criminal convictions—that even if their case was complicated, it was OK to apply. “And if you get denied, you can continue living your life as you do now.” Now, she said, even if she has a case that she thinks is strong, one that would typically be approved, she would say to a client, “If you aren’t approved, you could get forwarded to immigration. What do you want to do?”

One way survivors have to navigate this system is to figure out what the system says about them before they apply. Gonzalez says CAST attorneys will typically file Freedom of Information Act requests for their client’s history of interactions with law enforcement and immigration authorities, and will do an FBI background check. “It’s very common for trafficking survivors not to remember all their interactions with law enforcement,” she said. Between what CAST and its clients can document, they can “suss out” the risk of filing  a T visa application. They can also explore options for post-conviction relief, like vacating prior convictions, which California state law allows for.

Since the institution of the new policy, “we really want to make sure that we know enough to provide a clean application,” Gonzalez said. The stakes are just higher, when applicants are not given the chances they once had to submit more evidence to support their case, and when a denial can mean removal.

Several of API Legal Outreach clients are also unsure if they should apply, Choi told The Appeal. “It is concerning. We have to have very real conversations with our clients,” she said. They have to consider the risks they face as immigrants and survivors, particularly those who may have had interactions with law enforcement or been convicted of crimes related to their trafficking situation. Their chances of getting a T visa were always more difficult, and now more so. “A lot of folks might have been under the radar so far,” Choi said, “and this could be exposing them.”

Rita is one of those clients. She will remain in Northern California, she said, though she lives with the fear of what might happen to her just going about her life. “According to the law I’m still considered a criminal,” she said. “Here in this area ICE does raids, and that’s the risk for me—going outside of the house.”

More in Podcasts