SB 10 Unfair and Harmful to Some Groups

In 2018, California Governor Jerry Brown signed bail reform into legislation after the State Senate passed Senate Bill 10. The new bill spelled out an alternative approach to pretrial incarceration that would eliminate the constitutional right to cash bail as a means of pretrial release. The new system proposed by SB 10 would have instituted a system of pretrial risk assessment that employs a computer algorithm to assign a risk level to defendants that would make them eligible or non-eligible for pretrial release. Those deemed eligible for release would not have to pay bail money but those remanded to custody would have no alternative but to remain behind bars until their trial could be held.

Who is Hurt by SB 10?

While SB 10 is intended to address what is seen as injustice and inequity in the justice system, the end result will be harm to several groups. Those who stand to be the most negatively affected by the proposed changes are the taxpayers of California, families, law enforcement, and members of the LGBTQ community.

California Taxpayers To Foot The Bill For SB 10

The cost of implementing the pretrial risk assessment program proposed by SB 10 is estimated in the billions. There is no proposed mechanism in place to pay for its implementation. Each county will be responsible for establishing a new bureau that would oversee the implementation and ongoing administration of the new system. The funds for that implementation and oversight would have to be produced by the taxpayers of each county.

Currently, the financial responsibility for pretrial release lies with the defendant. Each arrested individual has the right to pay cash bail directly to the court to obtain release until their trial can be held. This allows defendants to continue to work, support their families, and maintain familial relationships until the legal proceedings are brought to a close. At that point, if the defendant has complied with all of the terms of their bail, the money will be released back to the person who paid it.

If a defendant cannot afford the entire amount of bail, they have the right to use the services of a bail bond company to assist them in their release. The defendant (or someone on their behalf) pays the bail bond company a non-refundable fee, usually 10% of the total cost of bail. In return, the bail bond company files a bond with the court promising to ensure that the defendant will comply with the terms of their release and that if they fail to do so, the bail bond company will pay the court the entire amount of cash bail.

This system shares the financial burden for pretrial oversight between the arrested individuals and the bail bond agents who are responsible for ensuring that the defendant complies with the terms of their release. This is an appropriate place for this financial burden. Under SB 10, the taxpayers of California would be tasked with the considerable financial burden of implementing the new system.

Defendants Harmed by SB 10

In addition to placing an unfair burden on the taxpayers, the system proposed by SB 10 would leave many defendants unable to obtain pretrial release under any circumstances. While proponents of bail reform, such as the Human Rights Watch organization, argue that there are biases in the current system that skew justice against the poor and communities of color, they remain opposed to the implementation of SB 10. The HRW argues, in their paper entitled “Not in it For Justice,” that the biases ingrained in the current justice system will remain a part of the pretrial risk assessment tools laid out by SB 10, and in some cases make the biases worse.

One of the many drawbacks to the pretrial release system that would be implemented by SB 10 is the requirement that arrested individuals who are already on release for another charge or have prior convictions will not be able to be released at all, but will be required to be remanded to custody until their trial can take place. The system proposed by SB 10 won’t be able to take into account the seriousness (or lack of seriousness) of the charges being faced, nor the nature of the previous charges or convictions. Being on pretrial release and committing any sort of infraction would immediately require the incarceration of that individual until trial.

The knowledge that a new arrest would immediately subject the defendant to incarceration until trial, with no chance of bail, could result in a more vigorous resistance to arrest by defendants in that situation. This could place law enforcement officers in greater danger, in some instances.

Families Threatened By Bail Reform

The implementation of SB 10 could be especially harmful to families. Domestic violence is never excusable. However, it is a fact that 70% of those charged with domestic violence either have the charges dropped or are found not guilty. These individuals and families go on to repair their relationships, get help for their issues, and move on with life.

However, if SB 10 is enacted, those accused of domestic violence will be required to remain behind bars until a trial can be held, something that could take weeks or months.

Automatic Jail Time For Those Accused of Domestic Violence

Section 1320.13 (i) of the new bill states: (i) There shall be a presumption that no condition or combination of conditions of pretrial supervision will reasonably assure the safety of any other person and the community pending arraignment if it is shown that any of the following apply:

(1) The crime for which the person was arrested was committed with violence against a person, threatened violence or the likelihood of serious bodily injury, or one in which the person committing the offense was personally armed with or personally used a deadly weapon or firearm in the commission of the crime, or personally inflicted great bodily injury in the commission of the crime.

This would mean that those accused of domestic violence would not be eligible for pretrial release AT ALL. Regardless of the outcome of the trial, the defendants would be required to remain behind bars until the trial could take place. This would mean loss of income, probable loss of employment, additional stress on familial relationships, and ultimately increase damage to families facing domestic violence situations.

SB 10 Dangerous to the LGBTQ Community

Individuals identifying as sexual minorities are grossly over-represented in the incarcerated population, according to a report published by the Williams Institute at the UCLA School of Law. The study states that over 40% of incarcerated women and 9% of incarcerated men are sexual minorities. (Sexual minorities, as defined by the study, included anyone who identified themselves as gay, lesbian, bisexual, transgendered, or anyone who had had sex with a person of the same sex, but did not identify themselves as gay, lesbian or bisexual.) 

The study goes on to identify the dangers faced by the LGBTQ community. According to the authors, male inmates who are gay or bisexual are six times more likely to be sexually assaulted by a staff member or inmate than are their straight counterparts. They also found that sexual minority inmates are more likely to experience solitary confinement, though it is important to note that solitary confinement is often used as a protective measure for LGBTQ prisoners, as well as a punishment. A report by the Bureau of Justice reports nearly 30% of lesbian, gay and bisexual prisoners were held in restrictive housing (their term for solitary confinement) during 2011-2012, compared to just 18% of heterosexual prisoners. 

Due to increased violence behind bars and an increased likelihood of mistreatment by authority figures, it is unsurprising that the authors found members of the LGBTQ community to experience higher rates of psychological distress from incarceration.

Under the cash bail system, members of the LGBTQ community could utilize their constitutional right to cash bail to gain almost immediate release from jail after an arrest, avoiding the crowded county lockup until their trial. Under the new system that would be implemented by SB 10, sexual minorities would no longer be able to obtain such immediate release. The pretrial risk assessment system would take time to be conducted on each individual, leaving LGBTQ defendants behind bars until their risk assessment was completed. This time is dangerous and traumatic for this demographic, but they would have no alternative under the new plan.

In addition to the wait for pretrial risk assessment, many arrested members of the LGBTQ community would be ineligible for release at all under the new system. The most common crime for which LGBTQ defendants are arrested is domestic or intimate partner violence. As previously stated, anyone charged with domestic violence is automatically denied the right to pretrial release under the new system proposed by SB 10, placing members of the LGBTQ community who are arrested for domestic violence or intimate partner violence behind bars until their trial is complete. 

SB 10 particularly dangerous to members of the LGBTQ community.

Bail Reform Dangerous To Law Enforcement

The new pretrial risk assessment tool that would replace cash bail will inevitably create increasingly difficult situations for law enforcement officers. Defendants who know that they face detention until trial because of past convictions or current pretrial release will be less likely to submit peacefully to a new arrest.

In situations of domestic violence, officers will no longer have the option of using an arrest for domestic violence as a separation tactic for people who have allowed alcohol or their tempers to override good sense. The officers will have to make on-the-spot determinations of imminent danger and risk assessment, knowing that an arrest will result in automatic jail time for the defendant and increased difficulty for the family involved. If the police officer makes the wrong call, he or she could leave someone in a dangerous situation or place someone behind bars who will ultimately be found not guilty but will still be without employment and in a situation made much worse by their incarceration. Police officers should not be put in a position to play judge and jury in the midst of all of their other duties. This would increase the mental and emotional strain of an already difficult duty.

In addition, police officers would also face a population where defendants already out on pretrial release would be much less cooperative to a second arrest, as that would result in automatic incarceration until trial. This knowledge could, in some cases, make a defendant much more resistant to arrest, increasing the danger to law enforcement officers who are already at risk every day.

Vote NO on SB 10

In light of the dangers to various groups of Californians, the system proposed by SB 10 is reckless and premature. If changes to the bail and justice system are needed, this is not the change that is called for. When you go to the ballot box on November 3, 2020, vote “no” on the referendum for SB 10.