Judges will assess need to stay jailed

The California Legislature has passed a revolutionary pretrial detention system which Gov. Jerry Brown signed Tuesday, Aug. 28. After Oct. 1, 2019, bail in the future will no longer be the basis for releasing an accused person from jail pending the next court action.

Instead, county superior courts will be required to establish pretrial assessment programs. These evaluations will be the basis for judges to set conditions on the release of arrestees.

“Today, California reforms its bail system so that rich and poor alike are treated fairly,” said Brown in a press release announcing his signing.

Many have argued that the current bail system punishes low-income and poor individuals, while the wealthy can post the bail and help with their defense without being incarcerated.

“It is no secret that our criminal justice system has a host of issues that must be addressed. Eliminating wealth as a determination in pretrial detention would be a groundbreaking first step in making our criminal justice system fairer and safer,” said Sen. Robert Hertzberg (D-Van Nuys), who introduced SB 10. “I look forward to the future, when we can all look back at a time when we wrongly let for-profit businesses decide who stayed in jail.”

In May 2017, the Alliance of California Judges sent a letter to Hertzberg and Assemblyman Rob Bonat (D-Oakland), who introduced the Assembly version of the bill, expressing strong opposition.

The judges’ organization stated, “… the bills would radically alter the current bail system … We recognize that not everyone has the ability to post bail pending trial. We address that concern … the proposals contained in these bills are simply too drastic and the effects on public safety and court congestion could be catastrophic.”

California Chief Justice of the state Supreme Court, Tani Cantil-Sakauye said in the release, “This is a transformative day for our justice system. Our old system of money bail was outdated, unsafe, and unfair. It took a three-branch solution with Governor Brown, the Legislature led by Senator Hertzberg and Assemblymember Bonta, and the Judicial Council’s Administrative Director Martin Hoshino working with judges in my Pretrial Detention Reform Work Group to bring about a fair and just solution for all Californians.”

State Sen. Jeff Stone (R-Temecula) opposed SB 10 for several reasons, including the elimination of the bail bond industry. While he agreed the current bail system needs reform, Stone argued that the pretrial assessment process is estimated to cost $3.8 billion, all of which will be a burden to California’s counties. Judges, as human and elected, will lean toward incarceration.

For those reasons, he said, “SB 10 has more faults and flaws than it does merit and justice.”

If arrested for most misdemeanors, the individual will be booked and released without going into custody.

For an individual who is determined to be a low risk to pubic safety and failure to appear in court, the release will be the least restrictive. No monetary conditions will be applied.

Some people will not be eligible for the pretrial assessment and, therefore, unlikely to be released under any conditions. This would include someone assessed as a high risk in the current case. An arrest requiring sex-offender registration would not permit a release nor would serious or violent felony arrests for physical violence or great bodily injury. Being armed or using a deadly weapon would also preclude assessment for release.

Several other conditions that would prevent release include some circumstances when arrested for driving under the influence, three or more failures to appear in court within the past 12 months, awaiting trial or sentencing in another case, or convicted of a serious or violent felony within the past five years.

The local superior courts will be responsible for conducting the pre-arraignment review and making the release decisions.

Current law prohibits release on a bond for capital crimes, violent or sexual assault felonies, or substantial evidence that the arrestee would carry out a threat on another person.

As SB 10 moved close to a final vote, California’s American Civil Liberties Union affiliates announced their opposition to the bill. ““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,” wrote the three ACLU executive directors in California.