California Gov. Jerry Brown (D) signed a landmark criminal justice bill into law on Tuesday, making the state the first to abolish cash bail and transitioning toward a system that gives judges discretion to decide who can go home and who must stay in jail pending trial.
“A person’s checking account balance should never determine how they are treated under the law,” California Lt. Gov. Gavin Newsom (D) said in a statement. “Cash bail criminalizes poverty, and with Gov. Brown’s signature today, California has opened the door to pursue and perfect a just pretrial system.”
The move comes amid a nationwide push from bipartisan criminal justice groups to overhaul an inequitable bail system that critics say favors the wealthy and punishes the poor while clogging local jails with people yet to be convicted of a crime. California’s abolition of money bail may be the biggest step to date toward systematic overhaul.
But criminal justice advocates fear the bill might have gone a few steps too far.
After 11th-hour changes to the bill earlier this month, various criminal justice reform groups withdrew their support, fearing the bill would actually lead to an increase in pretrial incarceration because of judges’ generous discretion to decide who is a public safety threat or a flight risk. These criminal-justice groups fear lawmakers replaced one inequitable system for another, this time plagued by preventive detention rather than poverty. Among those in opposition included the American Civil Liberties Union, Human Rights Watch, Civil Rights Corps and California Attorneys for Criminal Justice.
“Unfortunately, this amended version of [Senate Bill 10] is not the model for pretrial justice and racial equity that the ACLU of California envisioned,” the ACLU of California’s three executive directors in northern and southern California and San Diego said in a joint statement. “We oppose the bill because it seeks to replace the current deeply-flawed system with an overly broad presumption of preventive detention.”
Under current law in California — as with many jurisdictions in the United States — bail is often set according to a fixed “bail schedule,” a chart full of bail amounts that correspond with the charge and the defendant’s criminal history. The new law, which goes into effect in October 2019, would get rid of the bail schedule completely, aiming to individualize decisions about pretrial release. People charged with certain misdemeanors would be released within 12 hours of booking without seeing a judge, while the rest would undergo what’s called a “risk assessment,” using an algorithm that would consider a number of factors about the person’s history.
People who are deemed low- and medium-risk will mostly be released on their own recognizance or under supervision conditions. This would generally include people charged with low-level offenses or nonviolent felonies.
High-risk people, however, won’t get the same opportunity. Instead, they will remain detained until a hearing before a judge, who will decide whether to continue detaining the person based on several factors, such as the offender’s criminal history, whether the offense is violent and whether the person has repeatedly failed to appear in the past.
This is the part some supporters of an overhaul fear has led the new law astray: How will judges decide who poses a “high risk?”
The concern among critics is that too many people may end up unfairly classified as “high-risk” and detained based on subjective criteria and, crucially, that too many racial minorities will be classified this way.
Risk assessment tests can be tricky. They involve educated guesses about the likelihood a person will fail to show up for court or commit a new offense. But critics have said they can be biased against racial minorities or poor people, depending on what test is administered. For example, sometimes the tests consider people’s neighborhoods, employment or other personal factors, such as family and home-life structure, potentially penalizing those coming from low-income situations.
Alec Karakatsanis, executive director of Civil Rights Corps, told The Washington Post that defendants who are ordered detained may feel pressure to plead guilty to get out of jail quicker, rather than wait until trial to fight their cases — the same issue Civil Rights Corps has criticized within the money bail system. The organization has sued numerous jurisdictions nationwide over their money bail systems, including in California. One case out of San Francisco, which caused judges to question the constitutionality of California’s current bail system, will go before the California Supreme Court.
“This approach is not the reform of our bail system that we needed,” Karakatsanis said. “It replaces detention based on poverty with detention based on an algorithm. Most importantly, it could reproduce the business-as-usual assembly line guilty plea factory that defines contemporary American criminal courts.”
Lawmakers, by contrast, have said the new law prioritizes public safety in a way that takes money out of the equation. Those who are ordered detained will still have opportunities to argue for their release with attorneys at detention hearings.
The bill also requires all jurisdictions across the state to study incarceration rates, information that will be reported to the governor. The Los Angeles Times reported that the new bail system’s impact on the criminal justice system will undergo an independent review by 2023.
“Our path to a more just criminal justice system is not complete,” California state Sen. Robert Hertzberg (D) said in a statement. “But today it made a transformational shift away from valuing private wealth and toward protecting public safety. Thanks to the collaboration of the Governor, Chief Justice, and the Legislature, we are creating a system that is fairer for all Californians.”
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