California Gov. Jerry Brown signed a landmark bill today to overhaul the state’s money-bail system, replacing it with one that grants judges greater power to decide who should remain incarcerated ahead of trial.
The two-year effort fulfills a pledge made by Brown last year when he stalled negotiations over the ambitious legislation, saying he would continue to work with lawmakers and the state’s top Supreme Court justice on the right approach to change the system. The new law puts California at the forefront of a national push to stop courts from imposing a heavy financial burden on defendants before they have faced a jury.
“Today, California reforms its bail system so that rich and poor alike are treated fairly,” he said in a statement.
Senate Bill 10 would virtually eliminate the payment of money as a condition of release. Under last-minute changes, judges would have greater power to decide which people are a danger to the community and should be held without any possibility of release in a practice known as “preventive detention.”
Top state officials, judges, probation officers and other proponents of the efforts lauded the new law. Co-authors Sen. Bob Hertzberg (D-Van Nuys) and Assemblyman Rob Bonta (D-Alameda) called it a transformative day for criminal justice, and a shift away from a pretrial system based on wealth to one focused on public safety.
Chief Justice Tani Cantil-Sakauye, who helped craft the legislation through the formation of a judicial task force that spent a year studying the issue, described a three-branch solution to address a money-bail system that “was outdated, unsafe and unfair.”
“A person’s checking account balance should never determine how they are treated under the law,” Lt. Gov. Gavin Newsom said in a statement.
But the historic passage of the bill has been bittersweet for lawmakers, as opponents — including some of the bill’s most ardent former supporters — argued the final version of the legislation would allow judges to incarcerate more people based on subjective criteria, and did not include enough oversight over risk-assessment tools found to be biased against communities of color.
“No one should be in jail because they are too poor to afford bail, but neither should they be torn apart from their family because of unjust preventative detention,” said a statement from American Civil Liberties Union directors Abdi Soltani in Northern California, Hector Villagra in Southern California and Norma Chávez Peterson, representing San Diego and Imperial counties.
California’s bail system has long been ripe for reform, both Democrats and Republicans agreed. Under the current system, bail is set according to a list of fixed fees that depend on the gravity of the crime and often vary widely by county.
Offenders are required to post the amount upfront, or pay a 10% fee — like a down payment — to a bond company before they are released on bail. Those who can’t afford the fee can remain incarcerated up to an additional 48 hours, or longer on weekends or holidays, before they are formally charged and arraigned.
Under SB 10, counties would have to establish their own pretrial services agencies, which would use “risk-assessment tools,” or analysis, to evaluate people arrested to determine whether, and under what conditions, they should be released.
Only people charged with certain low-level, nonviolent misdemeanors — a list of charges that can be further narrowed by county — would be eligible for automatic release within 12 hours of being booked into jail.
All others arrested would have to undergo the risk analysis, a system that would sort defendants based on criminal history and other criteria into low-, medium- or high-risk categories. Courts would be required to release low-level defendants without assigning bail, pending a hearing. Pretrial services offices would decide whether to hold or release medium-risk offenders. Judges would have control over all prisoners in the system.
The new law, which will go into effect on Oct. 1, 2019, is expected to decimate the bail industry.
Whether it will lead to higher incarceration rates is unknown because courts don’t track the data that would make such an analysis possible, lawmakers have said. But the law will require courts to collect and report incarceration rates and undergo in 2023 an independent review of the legislation’s impact on the criminal justice system.
Still, in the days before its passage, some criminal-justice-reform groups that once supported the bill worked to kill it, landing on the same side as a bail industry that has worked to sink the bill from the beginning.
This week, a delegation of criminal-justice-reform advocates from across the state sent a veto letter to Brown.
The bill “sets up a system that allows judges nearly unlimited discretion to order people accused of crimes, but not convicted and presumptively innocent, to be held in jail with no recourse until their case is resolved,” the letter stated.
On the Senate and Assembly floors and in statements this week, state lawmakers stressed the legislation was only the first step in overhauling the bail system.
“For too long, our system has allowed the wealthy to purchase their freedom regardless of their risk, while the poor who pose no danger languish in jail,” Bonta said on Friday. “No more. Freedom and liberty should never be pay-to-play.”