By Maria Dinzeo
Flanked by lawmakers and the state’s chief justice, Gov. Jerry Brown signed a bill Tuesday doing away with California’s money bail system – enacting criminal justice reforms that have been lauded in the Legislature but sharply criticized by civil rights advocates for not going far enough.
“Today, California reforms its bail system so that rich and poor alike are treated fairly,” Brown said after signing Senate Bill 10, which replaces the current money bail system with pretrial risk assessments and lets local courts decide who should be released while awaiting trial or sentencing.
In a statement, California Supreme Court Chief Justice Tani Cantil-Sakauye praised the bill as a “fair and just solution for all Californians,” adding, “This is a transformative day for our justice system. Our old system of money bail was outdated, unsafe, and unfair.”
The law is set to take effect on Oct. 1, 2019, and promises to usher in a host of changes for how courts deal with pretrial detainees.
Judges will have wide discretion in determining who can be released from jail, and courts must establish “pretrial assessment services” to evaluate a defendant’s level of risk to public safety and make recommendations to judges about release conditions.
This work will be performed either by court employees, or the courts can contract a “new local pretrial assessment services agency established specifically to perform the role,” according to the text of the bill.
Funding for this new bureaucratic system will be provided by the Legislature and allocated to the local courts by the Judicial Council, which Cantil-Sakuaye chairs.
State Sen. Robert Hertzberg, D-Van Nuys, who introduced the measure in December 2016, unveiled amendments earlier this month that added the risk-assessment tools overseen by the courts and stripped pretrial release from individuals deemed high public safety risks.
A risk-assessment tool weighs factors in pretrial detainees’ background, including the charges faced, prior convictions and a history of failure to appear in court, and then assigns the defendant a risk level based on those factors.
The amendments caused the American Civil Liberties Union to withdraw support for the bill over concerns even more people will be incarcerated before trial.
In a statement, the executive directors of the ACLU’s three California affiliates said they were disappointed Brown had signed SB 10 into law.
“SB 10 is not the model for pretrial justice and racial equity that California should strive for. It cannot guarantee a substantial reduction in the number of Californians detained while awaiting trial, nor does it sufficiently address racial bias in pretrial decision making. Indeed, key provisions of the new law create significant new risks and problems,” the ACLU’s Abdi Soltani, Hector Villagra, and Norma Chávez Peterson said in the statement.
The three said they hoped Hertzberg would follow through on a commitment to address racial bias in risk assessment.
“The implementation of this bill – and subsequent legislation in this area – must ensure a significant reduction in incarceration and also provide due process and promote racial justice. We will work with lawmakers and our community partners to achieve that goal.”
Other groups had already jumped ship, like the Human Rights Watch and California Attorneys for Criminal Justice, which agreed with the ACLU’s assessment in an opposition statement sent to the state Senate.
“As attorneys who represent the individuals who will be directly impacted by this bill, we believe there is a substantial likelihood that more people will be incarcerated pretrial than under current law,” the group said.
“While SB 10 eliminates money bail, the replacement could reduce the options for pretrial release for tens of thousands of Californians each year. CACJ is entrenched in our pursuit of a fair system that will enable individuals to be returned to their families, employment, and daily lives pretrial. Getting rid of money bail is meritorious; however, doing so by potentially expanding pretrial incarceration is unacceptable.”
SB 10 authors Hertzberg and Assemblyman Rob Bonta, D-Alameda, negotiated for almost a year with the reform groups and lobbyists for the bail industry, alongside Cantil-Sakauye and judges on her Pretrial Detention Reform Work Group.
The revised bill sailed through the Assembly Appropriations Committee on Aug. 16 and advanced to the Assembly floor on the Aug. 20, just after the amendments were adopted. It quickly cleared both the Assembly and the Senate and was on Brown’s desk the following day.
With the California Bail Reform Act now law, the fate of a federal class action against San Francisco and its sheriff Vicki Hennessy challenging the constitutionality of bail remains uncertain. While the case is set for trial on Sept. 17, the plaintiffs’ attorneys sent a letter to U.S District Judge Yvonne Gonzalez Rogers last week saying SB 10 pretty much resolves the case.
“In short, California is on the cusp of fundamentally altering the state’s system of bail, and implementing a law that abolishes the very bail schedule that plaintiffs seek to abolish via this case,” attorney Sadik Huseny said in the letter. “SB 10 is set to go into effect on Oct. 1, 2019 – over one year from now. But in plaintiffs’ view, the passage of that law makes clear, at the very least, that there is no genuine issue of material fact left in this case now.”
Rogers is expected to hear more on this issue at a pretrial conference on Sept. 7.
In a phone interview, attorney Phil Telfeyan with the Washington, D.C.-based nonprofit Equal Justice Under Law, who is also representing the plaintiffs, said the case is in limbo until the Sept. 7 hearing.
“I expect we will receive guidance from the court about what next steps the case will take. The judge may want to go forward with the trial or briefly postpone the trial. Given that SB 10 does not take effect until Oct. 1, 2019, the judge may decide that the case will go forward as planned,” he said.
Telfeyan has mixed feelings about California’s bail reform law. “I too am concerned that when implemented SB 10 will actually increase pretrial detention rates,” he said. “It is a positive because I think it does away with money bail schedules but I’m concerned about the increase in incarceration rates. We’ll have to remain cautious and vigilant to make sure peoples’ constitutional rights are not violated.”