Bail Overhaul Bill Clears Key Hurdle in California

by | August 17, 2018

By Melody Gutierrez

California could no longer require those accused of crimes to post bail while awaiting trial under a bill to overhaul the bail system that moved forward in the Legislature Thursday.

Under SB10, local courts would create their own evaluation system for deciding who can be safely released while awaiting trial or sentencing. While ankle monitors or other conditions could be required for a person's release, those conditions must be nonmonetary. Democratic lawmakers who have been pushing for years to eliminate cash bail said SB10 would create a system focused on a person's risk to the community, instead of their ability to pay bail.

"It has been challenging (to make) this fundamental sea change in the criminal justice system in California that (currently) discriminates against people who are poor," said state Sen. Bob Hertzberg, D-Van Nuys, who authored the bill. "We have a system that punishes people, takes away their liberty, just because they have less money."

The bill was one of 600 pieces of legislation voted on Thursday, with lawmakers in two fiscal committees -- one in the Assembly and one in the Senate -- weeding through what is known as a "suspense file." Bills placed on suspense generally cost the state at least $150,000 and are dealt with in a rapid-fire session.

The 135 bills held by the committees are effectively dead for the year.

The fate of SB10 was among the most closely watched Thursday, with Democratic lawmakers who have been pushing for the reforms smiling triumphantly after it was moved to the Assembly floor for a vote this month. Moving the bill forward came at a cost, however. It was heavily amended to give county courts the authority to determine who should be released and who should be detained.

That caused some groups that previously supported the bill to pull their backing out of concern that biases will lead to more minorities being detained, negating the gains of ending money bail.

"This is not at all the bail reform our communities deserve and have long fought for," said Gina Clayton-Johnson, executive director of Essie Justice Group, an organization representing women with incarcerated loved ones. The group initially was part of the coalition pushing the bill before pulling its support.

Under SB10, people accused of nonviolent misdemeanors would be released within 12 hours after being booked. That would not include those detained in domestic violence cases, people recently convicted of a serious or violent felony and those with multiple instances of failing to appear for previous cases. Local courts would decide how to assess who is a low, moderate or high risk when determining whether someone should be released after an arrest.

The American Civil Liberties Union of California also withdrew its support of the bill after the amendments were announced. The group applauded the end of an "exploitative and abusive commercial bail industry," but said SB10 needs to go further to ensure the pretrial assessments are applied equally, regardless of race or region.

The California Public Defenders Association dropped its support as well, and San Francisco Public Defender Jeff Adachi's office opposed the bill. Deputy Public Defender Chesa Boudin said abolishing cash bail would be a positive step, but "I think (SB10) would dramatically increase the pretrial jail population across the state."

The California Bail Agents Association has aggressively fought the bill, saying it will lead to more people behind bars and that it puts the public at risk. The bill would end the bail industry, which makes its money through a 10 percent fee charged to defendants for a surety bond.

"This bill does nothing to allow people in poverty or of color to get out of detention easier, as was its original stated intent. Now it simply detains everyone," said David Quintana, a lobbyist for the California Bail Agents Association. "It should be retitled as the Mass Incarceration Act of 2018. ... I'm half-expecting the Trump administration to endorse it."

State Sen. Nancy Skinner, D-Berkeley, a supporter of the bill, said there are legitimate concerns that the pretrial evaluation process could be tainted by judicial bias, with some people held when others accused of similar crimes are not. Skinner said lawmakers will be watching and ready to address any issues that arise.

"We will fix that," Skinner said.

The bill now heads to the Assembly floor and will return to the Senate for a vote on the amendments. If passed by both houses by Aug. 31, the bill would land on Gov. Jerry Brown's desk.

"Our office is open to legislation that reforms California's pre-trial system in a cost-effective manner that protects public safety and preserves the rights of the accused," Brown's office said in a statement.

The bill would take effect Jan. 1, 2020.

"This will advance justice," said Jessica Bartholow of the Western Center on Law and Poverty. "Being poor, people in your community, people in institutions, whether they mean to or not, treat you different ... our laws should not."

San Francisco Chronicle staff writer Bob Egelko contributed to this report.

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