Facing an existential threat to their industry, bail agents are fighting back with a double-edged attack on a law that abolishes bail in California.

California Supreme Court Chief Justice Tani Cantil-Sakauye called it a “transformative day for our justice system” when Gov. Jerry Brown signed Senate Bill 10, the law that replaces bail with a system based on risk assessments that gives judges broader discretion over release.

But the bill now faces both a referendum to repeal and a ballot initiative to grant bail constitutional protection.

The initiative, filed quietly last month, would amend the California Constitution to shield the right to bail through a bail bonds agent from legislation like SB 10. The Bail Reform Act would ensure “the right to obtain release at all times before trial by posting bail.”

The California Constitution already prohibits excessive bail, but the Bail Reform Act seeks to define it specifically. “Bail in excess of the amount reasonably necessary to ensure the personal appearance of the person charged with a crime to appear in court when his or her attendance is lawfully required, is excessive,” the initiative reads.

Sacramento lawyer Tom Hiltachk, who filed the initiative and sought the referendum on behalf of the bail industry, did not respond to calls seeking comment.

“It seems to me it’s a little desperate,” said Sen. Robert Hertzberg, a Democratic lawmaker who helped write SB 10 and has championed the anti-bail movement in California. He says he finds it odd that the state constitution would be amended to protect an industry.

“It’s the weirdest thing. All of a sudden they care about the liberty of people?” he said. “They care about making money. I don’t have a problem with making money, but do it honestly. One of the dark sides of being in public service is these advocates so often never care about the public good, they care about preserving their interests.”

For Hertzberg, the initiative is a last-ditch effort, like throwing everything against the wall to see what sticks.

“Do they want to repeal SB 10 or do they want bail in the Constitution?” he said, adding that for voters “it will be confusing”

Under SB 10, those charged with nonviolent, “low-level” misdemeanors could be released within as little as 12 hours after being booked into jail, and charges of stalking or domestic violence are exempt. Those arrested for felonies will be immediately assessed for their risk to public safety and likelihood of returning to court.

Although SB 10 does away with a system that many social justice groups decried as unfairly punitive towards the poor, it was also seen as replacing one flawed framework for another. Critics have assailed algorithms and actuarial methods that assess a person’s threat to public safety as racially biased, and say they may lead to more people being incarcerated than before. Others are uncomfortable with judges being given even broader discretion to determine risk.

Jeff Clayton, executive director of the American Bail Coalition, is among SB 10’s strongest critics. “I think the same things that were issues when SB 10 passed are still issues,” he said. “We’re not going to solve society’s evils by fixing the bail system. We’re certainly not going to solve racism. It’s more fundamental and it’s more about economics and the legacy of slavery and discrimination.”

Clayton says he’s not even sure enshrining bail as a constitutional right in California will solve the problem.

“I don’t think any initiative is going to fix the system at this point,” he said. “Obviously it would continue what we’ve all known as the right to bail for centuries on this continent so it’s probably a good thing, but the fundamentals of the issue are not going to be fixed by this amendment.”

Clayton is more optimistic about the effort to repeal SB 10.

“The referendum has a chance because of the wide opposition,” he said. “The no-money bail system movement is over in my mind. It’s a bad concept. People don’t want that. This is about finding doors out of the jail, not finding more pathways to keep people in.”

Hertzberg said he’s working to address concerns about bias. He pointed to this year’s Senate Bill 36, written in partnership with the Ella Baker Center for Civil Rights, which establishes guidelines for using risk assessment tools to mitigate bias.

“SB 36 requires the issue of bias to be assessed,” Hertzberg said. “The whole purpose was to fix the things I could not fix last year.”

Though the future of SB 10 is uncertain given the bail industry’s two-pronged challenge, courts are forging ahead to craft a justice system without bail.

On Friday, the Judicial Council will meet to discuss how to dole out $75 million designated by then-Gov. Brown for pretrial pilot projects in 16 courts. The projects, which will be tested over a period of two years, will analyze bias based on race, ethnicity and gender in pretrial decision making.

Contra Costa County Public Defender Robin Lipetzky had concerns about the final version of SB 10, as it does not require a full evidentiary hearing for a judge to make a risk determination. “It was more of a rubber-stamp procedure,” Lipetzky said.

But she said the law is a step in the right direction and blasted the initiative as a money grab by the bail industry.

“Money bail is what needs to be gotten rid of. We have completely gotten away from what the purpose of bail was, which was you deposit an amount with the court you can afford and you get that money back,” she said. “I see this initiative as nothing more than an effort to enshrine the for-profit bail bond industry with constitutional protection. It’s unnecessary. Worse, it perpetuates the existing wealth-based pretrial system which unjustly burdens poor people and people of color.”

Lipetzky added, “It’s just disingenuous for them to argue it’s an issue of justice. For them it’s an issue of profit.”

The initiative could very well be a response to a pending constitutional challenge to bail in the California Supreme Court. In May, the court agreed to take up the case of 64-year-old Kenneth Humphrey, accused of robbing his 79-year-old disabled neighbor of $7 and a bottle of cologne in 2017. An appellate court found Humphrey’s initial $600,000 bail and later $350,000 reduction unconstitutional, and ordered a new bail hearing. The appellate panel also said judges must consider a defendant’s ability to pay when setting bail.

“The Humphrey decision is going to be as important, if not more, than what happens with SB 10 in terms of the landscape of bail within California,” Lipetzky said. “When Humphrey comes down it’s going to clarify what the constitutional parameters are of bail. Right now, that’s still unclear.”

Like Lipetzky, Hertzberg mourns what the bail system has become.

“My father used to be a jailhouse lawyer. In the old days the judge would say ‘$100 bail’ and you’d put up your $100 and then next day you come back to court and you would get your $100 back,” he said. “Today because of the way these bail companies work they put up $5,000 for a $50,000 bail, you come back the next day, the charges are dropped and you lost your $5,000 bucks. The whole thing got prostituted by the insurance companies and the payday type lenders and it lost its purpose.”

Hertzberg said he doesn’t have a problem with a bail system based on a person’s ability to pay, but he doesn’t see the point in moving backward.

“What we know is you can make sure people are safer, that they return to court through cheaper and better ways and we know the impact on poor people. We have such tools available to be able to ensure justice and safety and reduce public costs,” he said. “We’ve learned a lot from the days when my dad was a jailhouse lawyer.”

— By Maria Dinzeo