Unless Senate Bill 10 is vetoed by Governor Jerry Brown, starting on October 1 of next year, California will no longer have a cash bail system. On Tuesday, SB 10, authored by San Fernando Valley Senator Robert Hertzberg, passed the senate. The bill initially garnered strong support from Human Rights Watch (HRW), the American Civil Liberties Union (ACLU), the National Association for the Advancement of Colored People (NAACP), and public defenders. However, following amendments made to the bill on August 20, Human Rights Watch, along with many others, switched their position to strongly oppose the California Bail Reform Act.
Opposition to the bill has not dissuaded State Senator Hannah-Beth Jackson and Santa Barbara District Attorney Joyce Dudley, both strong supporters of bail reform. Before voting on SB 10, Jackson spoke in support of the bill, calling for “justice for all — not for the rich … but for all.” The bail industry hurts working women more than anyone else, added Jackson. “Women take on extraordinary debt to cover the 10 percent nonrefundable fee.” In addition to women, it is the justice system that suffers, Jackson said. “The criminal justice system as we know it today has been an abject failure.”
SB 10 would do away with cash bail and instead introduce a “pretrial risk assessment” to determine whether the person being detained is low, medium, or high risk. Most misdemeanor detainees will be released without the risk assessment. Most who are ranked low and medium risk will be released on their own recognizance, meaning no bail money is paid to the court and no bond is posted. However, the bill hands over ultimate say to the court judge, granting the bench full discretion on whether the individual is a threat to public safety and will likely make his or her court appearances.
Originally in opposition to the bill due to her concern for public safety, Dudley was won over by amendments. “Defaulting to cash doesn’t make sense to me at all,” said Dudley about the current system. Dudley said she’s not too worried about the power granted to judges in the bill or whether they will impose their biases on whom they assign to preventive detention. “Every judge gets on the bench with bias,” said Dudley. “The best ones are those who are aware of it and keep it in the front of their mind when making decisions.”
If judges decided to hold an individual until the end of his or her trial, Dudley would back their decision. There must be reasonable suspicion to approach someone, probable cause to arrest them, and a present state of admissible evidence for the DA’s Office to pursue charges, said Dudley. “That’s a pretty high standard.” Yet, according to the California Department of Justice, one in three felony cases in the state do not result in conviction.
The bill, originally intended to decrease the number of people detained pretrial, was introduced in late 2016. Since then, the First District Court of Appeal has declared California’s current bail system to be unconstitutional for its failure to consider an individual’s ability to pay. The current system is not based on flight risk or risk to public safety. Instead, critics point out, it unfairly punishes the poor and contributes to overcrowded jails as those that cannot afford bail are forced to be incarcerated even though they have not been convicted of a crime. Currently, 64 percent of inmates in Santa Barbara County Jail are unsentenced and awaiting trial.
Among other groups opposing the bill, including the ACLU and the NAACP, the HRW contends that “the new [version of] SB 10 is simply not bail reform; it replaces one harmful system with another. In fact, it will make many of the problems we revealed in our report even worse,” according to its opposition letter. “[It would set] up a system that allows judges nearly unlimited discretion to order people accused of crimes, but not convicted and presumptively innocent, to be held in jail with no recourse until their case is resolved.”
While she allows that the bill is not perfect, Jackson is convinced SB 10 is a significant step in the right direction. “If we address [bias], it creates a system that acknowledges and overcomes it,” she said.