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“There are two things we want to see in bail reform legislation,” Insha Rahman of the Vera Institute of Justice told The Daily Appeal in a phone interview. “One is the elimination of cash bail, taking money out of the equation. The other is reducing the number of people detained awaiting trial.” Senate Bill 10, the California legislation that Governor Jerry Brown signed into law Tuesday, does a great job at the first of these goals, and does nothing for the second. In fact, it might make things worse. The law, Rahman says, creates broad categories of people eligible for pretrial detention at the judge’s discretion, including anyone who is charged with a violent felony or who has been charged with one in the recent past, anyone who is pending sentencing or on parole or probation. “Deeply troubling is that there is a presumption of detention written into those categories,” she says.
“New Jersey is the best counterpoint to this,” Rahman adds. “They decided to take money off the table. And even if they didn’t go as far as California to completely eliminate cash bail, they essentially did in practice, but without creating huge swaths of people eligible for pretrial detention.” New Jersey also created all sorts of due process safeguards that made it harder, not easier, to detain people. This included access to counsel and rigorous conditions before even considering preventive detention. “There is also a speedy trial provision within the bail statute itself. None of those due process provisions are present in SB 10.”
As a cautionary tale, Rahman points to Maryland, where bail reform seems to have increased preventive detention. Like in California, there are not enough safeguards. “The problem is that you’re really trying to legislate culture change in the courts, so if a statute doesn’t go far enough to force actors to act in another way, they’re not going to do it,” she explains. “There is no incentive to do it unless it’s prescribed in an explicit and specific way.” A June report from Prince George’s County, Maryland, found that although “cash bails have decreased, judges have opted to hold more people without bond instead of releasing them on their own recognizance,” according to the Washington Post. Those trends “track similar findings from studies conducted by Princeton University and the Maryland Office of the Public Defender as well as anecdotal observations from local public defenders.” [Lynh Bui / Washington Post]
An earlier version of SB 10 would have led to a far more radical change “by putting the burden on judges to prove why someone should be detained as opposed to presuming detention,” according to Mother Jones. “And it would have narrowed the pool of defendants who could be detained to only those charged with the most serious crimes.” After judges complained that such a move would hinder their independence and judicial discretion, that version failed. [Olivia Exstrum / Mother Jones] The version that passed lost the support of many of its initial backers and led Reason magazine to say that it is “worse than doing nothing.”
“At issue is what these advocates view as a system that gives almost absolute power to local judges, who are elected officials in California and might be tempted to pander to law-and-order voters by keeping defendants locked up,” writes Abbie Vansickle for the Marshall Project. “In many ways, it replaces one evil with one that’s even worse in that it gives unbridled discretion and power to judges,” says San Francisco public defender Jeff Adachi. Critics add that the new version makes the system more vulnerable to biases. The ACLU, an advocate of the earlier bill, now opposes the measure because it cannot “provide sufficient due process nor adequately protect against racial biases.” State public defenders worry about increased incarceration. “It’s an abomination of what the prior bill set out to do,” says Adachi. “It gives pretty much all the power to judges who, for the most part, were the major culprit in high incarceration rates, particularly of poor people.” [Olivia Exstrum / Mother Jones]
Critics also focus on the power the bill gives to counties in deciding what risk assessment tools to use and how they should be used. These tools have come under fire for baking bias into the decision-making process, and the California bill does not provide safeguards to prevent the same result. [Olivia Exstrum / Mother Jones] John Raphling, a senior researcher with the nonprofit Human Rights Watch, says that this bill will take an unjust system and replace it with something that is potentially worse, “empowering judges to take away our liberty based on biased algorithms and the judges’ own subjective choices, with no standards and no due process.” [Jazmine Ulloa / Los Angeles Times]
And for all the fanfare around bail reform, it would seem that California has not made much progress. A 1968 California Law Review article, “Tinkering with the California Bail System,” stressed the importance of reducing “the number of arrestees legally ineligible for release on bail,” the very thing worrying advocates today. Those legally ineligible for bail, in 1968, fell into three categories: “capital offense; the accused felon who has not yet been arraigned; and the arrestee taken into custody by virtue of a warrant which either specifies no bail or orders the arrestee held for transfer to another jurisdiction.” The author says that magistrates “should be reluctant to issue warrants which do not specify an amount of bail,” and urges the legislature to take a look. Many critics are urging their legislature to do just that today, 50 years later. [John Hoskins / California Law Review]
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