News & Analysis

CALIFORNIA KILLS CASH BAIL, ACLU SAYS SYSTEM POTENTIALLY MORE BIASED THAN EVER

37355809890_0bd5e77934_k.jpgPhoto: Thomas Hawk/Flikr

On August 28, California governor Jerry Brown, signed SB-10 , a law that made California the first state in the U.S. to put an end to the cash bail system. The law, which goes into effect in October 2019, was sponsored by Senator Robert Hertzberg (D-CA) of California’s 18th Senate District, and aims to put an end to cash bail, which many on the left believe is highly discriminatory against those who are lower income and/or members of ethnic minorities. However, some believe that the new law has the potential to spawn a bail system that is more biased than ever before. 

Under the new legislation, local judges are left with the authority to determine whether or not an individual is to remain in jail or if he or she is to be released until trial. Individuals who commit a non-violent misdemeanor will be released after 12 hours–otherwise, judges will use an algorithm to determine whether or not an individual is be eligible for release, and the creation of each algorithm will be left up to each jurisdiction within the state.

Judges have much wider discretion over individuals who are accused of but not yet found guilty of–even certain misdemeanors, like making threats, can render one ineligible for release. 

What has made the algorithm provision so controversial is that the algorithms are supposed to calculate what “risk” the person in question is to the public. Some of the factors included in the “risk assessment” include criminal record, severity of crime, likeness to commit the crime again, and whether the individual may be a flight risk. The algorithms will be developed by private companies and it will be left up to the discretion of each county to decide what factors will be taken into account. 

The algorithm also determines what risk tier an individual falls into–low, medium, or high. Those who are deemed a “high risk” are likely ineligible for the release. If one is deemed low risk, he or she is more likely to be released with pre-trial court supervision and a commitment to show up for any future hearings or sentencings. As far as “medium risk” individuals are concerned, the determination of whether or not they will be released is left to the discretion of the judge.

Many cash bail reform advocates, including the American Civil Liberties Union (ACLU), have reverted their support for the legislation due to the vagarities of the algorithm provision.

The ACLU of Southern California released a statement in mid-August  that changed its position on the legislation. The ACLU statement says:

“After further serious consideration, the ACLU of California has changed its position on the recently-amended SB 10 to oppose. As much as we would welcome an end to the predatory lending practices of the for-profit bail industry, SB 10 cannot promise a system with a substantial reduction in pretrial detention. Neither can SB 10 provide sufficient due process nor adequately protect against racial biases and disparities that permeate our justice system.”

When Pretrial Justice Institute spokeswoman  Fiona Druge was asked for comment on why the organization remained in support of this legislation, unlike the ACLU of Southern California, she referred to an August 28 press release:

The bill signed into law today is historic, but it is only a first step. The state legislature wisely included an extended period of time to design and implement new pretrial justice practices. But California must take steps to ensure changes in court culture as well. The ultimate success of this legislation hinges on criminal justice system stakeholders implementing changes that result in substantially fewer people in jail—which we know from New Jersey’s example can be accomplished without jeopardizing public safety. As public officials across the state begin implementing this legislation, they should take to heart the Supreme Court’s admonition two decades ago that ‘in our society, liberty is the norm, and detention prior to trial or without trial is the carefully limited exception.”

The California Review reached out to multiple bail bondsmen for comment on why they oppose the legislation, but only one bail bondsman, from California’s Central Valley region, was willing to speak, but only on the condition of anonymity.

“We’re against it. It’s going to destroy a lot of families who live off these jobs.” He added, “The problem has nothing to do with us.”

He believes that much of the bill’s content is based off of misconceptions of the bail bond industry.

“Every county has their own schedule and for different crimes. No discrimination since it’s based off of the crime you commit. California law already mandates we can’t charge interest. We just charge a flat rate of 10%. The percentages is based on each individual company.” 

When asked about industry efforts to repeal the new law, he replied, “We’ve been donating money to coalitions to fight the new law.” 

Many believe that the bail bond industry will try to push for a ballot initiative in the 2020 elections to save itself , following a similar path to the earlier passage of “gas tax” bill SB-1 and the ongoing Yes on Prop 6 repeal effort.

The San Francisco Chronicle already reports that the industry has began to collect signatures for a potential statewide initiative. California’s pilot program, and industry responses against it, will serve as a bellwether for bail reform movements nationwide; regardless of the outcome, bail is sure to remain a contentious issue for years to come. 

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