Bail reform is Calif.'s latest, most sweeping move in criminal justice reform
Bail reform might be the most consequential and far reaching reform yet, legal experts said
The San Diego Union-Tribune
hen Gov. Jerry Brown signed a sweeping new law that eliminated cash bail in the state’s massive court system last month, it marked both the latest step in the state’s reform of the criminal justice system — and a leap into the unknown.
It comes after several years when whole segments of the state’s criminal justice system have been reworked to lessen penalties and prison time. The changes, accomplished through both legislation and voter-driven initiatives, include modifying the Three Strikes sentencing law, legalizing marijuana, recasting juvenile law to emphasize rehabilitation and keeping kids out of juvenile hall, reclassifying crimes from serious felonies to less onerous misdemeanors, and reducing state prison populations by paroling more inmates and incarcerating more in local jails for shorter times.
Bail reform might be the most consequential and far reaching reform yet, legal experts said. But the bill Brown signed, which will become effective in the state’s 58 trial courts in October 2019, was not met with universal applause.
Reform advocates who had pushed for years to change the system and supported earlier versions of the bill dramatically turned against it at the end, and remain skeptical of its provisions.
There are concerns over constructing an entirely new system from scratch. The bail bonds industry, which will be put out of business when the law becomes effective, has already started a drive to repeal it at the ballot box. And there could be legal challenges to some of the law’s provisions.
Time is short, too, as new rules have to be drawn up and put in place in a year.
“This is a seismic shift in the approach we will be taking in this area,” said Martin Hoshino, the administrative director of the state Judicial Council. “We’ve been operating in this fashion, the cash bail system, for as long as anyone remembers.”
The new law replaces the current system where people arrested for a crime had to pay money, usually to a bail agent, to gain release. That amount, detailed in bail schedules kept by each Superior Court, which varied from county to county and from crime to crime.
The new system essentially shifts the emphasis away from money to an analysis of whether someone is a risk to public safety.
Under the new law, defendants will be classified as low risk, medium risk, or high risk for release. Anyone arrested for a misdemeanor crime — with a few exceptions — will be released within 12 hours, a provision that is likely to reduce the local jail population substantially.
An entirely new agency called Pretrial Assessment Services will be responsible for categorizing people. The legislation requires courts to use a scientifically validated risk assessment tool to make those determinations. These are often software programs that deploy algorithms that weigh factors — criminal history, age, the type of crimes someone has been arrested for in the past and many other factors — to determine someone’s risk level.
People categorized as high risk will have to prove to a judge at a hearing they can be safely released, but would have to overcome a legal presumptions going into the hearing that they can’t be safely released. Prosecutors can file motions seeking to detain a person also.
Judges will have the power to determine if someone should be held in preventive detention before trial — a provision that has drawn the most fire from reform advocates dissatisfied with the bill. They fear the bill gives too much discretion and authority to judges to detain people, and could result in more people in pre-trial detention than now.
“The critical question is how broadly can that power be exercised?” said Margaret Dooley-Sammuli, a criminal justice expert with the ACLU Campaign for Smart Justice. The ACLU has long advocated for cash bail elimination but ended up opposed to the final bill.
“Our concern is that this bill allows a large presumption of preventive detention and in various ways seems to suggest pro detention stance on a broader range of categories,” she said.
Some kind of preventive detention had long been contemplated. A report on reforming the bail system by a special committee of the Judicial Council in October 2017 laid out 10 principles that should be part of any reform — including the use of preventive detention.
Earlier versions of the bill contained those provisions, but they were far narrower, Dooley-Sammuli said.
On the other hand, judges wanted to have more of a say — or discretion — in who gets released and who does not and did not want to rely strictly on a computer-based printout.
“From our perspective, we wanted to make sure judicial discretion remains an important part of pretrial release issues, as it has always been,” said Judge Stuart Rice, a Los Angeles Superior Court jurist and the head of the California Judges Association.
While low risk offenders will be released on their own recognizance, and high risk offenders will likely remain in jail, it is the medium risk offenders who will pose the biggest challenge to the system, experts said. “The judicial discretion will come in mostly in that medium and high range of the law,” Hoshino said.
The legislation identifies specific crimes — such as domestic violence, battery and stalking — that make someone ineligible for release by pretrial services assessment. It also says people determined to be a medium risk can be released — or detained. And it specifically allows local courts to “further expand the list of offenses” that block someone from being released before an arraignment.
That means that determining someone as medium risk and eligible for release could be different in San Diego County than in Santa Clara or Los Angeles County. But that local control was a necessary part of the bill, said Michael Roddy, the executive officer for the San Diego Superior Court.
“I think you would hear a hue and cry if there was not the control by local courts to have some deviations from a one size fits all approach,” he said.
San Diego District Attorney Summer Stephan said that the new law will be “resource intensive,” and that prosecutors may face an additional motion and hearing to ask the judge to keep some people behind bars. It also means more notifications — and explanations — for victims, who are required under the new law to be notified about a person’s custody status.
Stephan said her office is concerned about some aspects of the legislation, such as release of people charged with some misdemeanor sex offenses, but she expects future bills to clean up those issues.
“We will continue to work on plugging (holes in) the issues,” she said, adding that her office is in communication with state officials “about the things that we’d like to see fixes for.”
First, however, the Judicial Council will have to come up with statewide court rules describing how the program will work. Then, local courts will fashion their own local rules that comply with the state rules.
California’s changes come amid a national movement toward bail reform. In New Jersey, cash bail has been “functionally eliminated,” said Cherise Fanno Burdeen, CEO of the Pretrial Justice Institute, which works toward bail reform.
Since 2017, New Jersey has only allowed cash bond as a last resort. In the first six months of the reform, the number of people held pretrial dropped by 15 percent, according to Burdeen’s organization.
New Mexico has also recently moved away from cash bail. Among the changes put in practice since July 2017 is no person should be detained solely because they could not afford bond. But money is not entirely out of the process for all cases. If the person is considered a flight risk, judges can require money bond for those who can afford it.
Judges in New Mexico also have the power to keep people accused of crimes in jail when they determine there is “clear and convincing evidence” that they pose a danger to the community.
Those changes retained elements of the cash bail system, however. Only California turned against it completely, a move signaled in the final recommendation of the Judicial Council report from October 2017.
“A structure will be sustainable only if it is built on a solid foundation,” the committee wrote. “To undertake such comprehensive reform, this system must not be grafted onto the current complex statutory framework of monetary bail.”
What the new system will look like and how it will function remains to be seen. But the state has taken a dramatic step forward, said Rice, the head of the judges association.
“The change is very significant,” he said. “It’s one thing to say petty theft is now $400 but will be $850. That’s a change. But when you are changing the whole manner in which we as a system are addressing pretrial detention that is a huge change.”
©2018 The San Diego Union-Tribune