On August 28, 2018, California Governor Jerry Brown signed into legislation what is known as “Bail Reform” after the passage of SB10 in the State Senate. SB 10 spelled out a new approach to pretrial release for those individuals arrested for crimes in California. However, many in the State of California disagree with the approach being taken in SB 10 and more than 500,000 signatures were obtained objecting to the implementation of the bill. Those objecting to the bill include members of law enforcement, judicial members, citizens, and members of the bail industry. Even the Human Rights Watch organization, which has called for bail reform in the US, is opposed to the passage and implementation of SB 10.
What Does SB10 Mean For California?
With the passage of SB10, lawmakers approved the creation of an entirely new agency that would be responsible for assessing the “danger level” of individuals arrested in the State. The pretrial assessment would allow judges to determine who would be eligible for pretrial release and who would need to be held in custody until a trial could take place. Under the new pretrial assessment, people arrested for violent crimes, including domestic violence, and any charge involving weapons, would automatically be remanded to custody until a trial could be held.
Is Bail Reform Necessary?
This approach to custody and release is intended to eliminate what has been seen by some as an unfair system of cash bail, which allows arrested individuals to pay a predetermined amount of bail to obtain their almost immediate release from jail after an arrest, until a trial can be held.
Proponents of bail elimination argue that cash bail is unfair to the poor and provides a “free ticket” out of jail for those with money. However, current California Bail laws already provided for a judge’s discretion in setting bail and allowed judges to set defendants free without bail, a term known as “released on their own recognizance.” Judges already can release someone without requiring bail, when they determined that a defendant is unable to pay bail and/or is not a threat to the community or a flight risk. Not only do they have the ability to do so, but in January of 2018, a California appeals court ruled that judges must consider a defendant's ability to pay bail when determining the bail amount. This could result in much lower bail requirements or no bail being required, in some cases.
If judges are already required to use their discretion in requiring bail or allowing for non-bail, pretrial release, one must ask whether a whole new bureaucracy is really necessary? Opponents of SB 10 say that it is not necessary, at all.
Cash Bail Keeps Financial Responsibility Where it Belongs
The current system of cash bail keeps the financial responsibility for release and oversight on the very people who are being arrested. Those individuals who can afford to pay the entire amount of cash bail are heavily invested in ensuring that they comply with the terms of their pretrial release so that the bail money can be recovered. Those individuals who cannot pay the entire amount of bail in cash can seek the assistance of a bail bond company. The bail bond company charges a fee in exchange for a promise to the court that if the defendant fails to comply with the terms of their pretrial release, the bail bond company will pay the court the full amount of bail due. The bail bond company is then responsible for ensuring that the defendant appears for hearings and otherwise complies with the terms of release. If, for instance, a defendant out on bail bond fails to appear for a hearing, the bail bond company will find the defendant and make sure they appear or turn them back over to the court for re-incarceration.
This process of cash bail makes the defendants financially accountable for their own compliance with the pretrial release. For those who can’t afford the full cost of bail, bail bond companies can provide oversight that would otherwise have to be provided by already overworked law enforcement officials. The current system also benefits those arrested, by allowing them the opportunity for immediate release from jail. This allows defendants to continue working, supporting their families, and maintaining relationships while keeping them financially responsible for pretrial compliance.
The system proposed by SB 10 would make the taxpayers of California financially responsible for the oversight and compliance of defendants on pretrial release. The cost of implementing and maintaining the pretrial risk assessment system is estimated to run in the billions and is only funded by the taxpayers.
SB 10 Unfair, Even Harmful
While the current system is seen as unfair by those in favor of bail reform, the new system proposed by SB 10 would only serve to make the situation worse. In some cases, much worse.
SB 10 Harmful to Families
For families facing domestic violence charges, the implications of SB 10 are dire. The wording of the bill would make it impossible for anyone accused of domestic violence from being released from jail (if arrested) before a trial can be held. This is in spite of statistics that show that more than 70% of individuals initially arrested for domestic violence either have the charges dropped or are eventually found “not guilty.”
Domestic violence is inexcusable. However, the allegation of domestic violence is often made in the heat of the moment, only to be taken back or played down by the accuser once the moment has passed. Under SB 10, those accused of domestic violence would remain behind bars until a trial could be held, leading to loss of income, loss of employment, and further damage to familial relationships. And, all of this would be in the face of a less than 70% conviction rate for individuals initially charged with domestic violence. This is an increased burden on families who are already struggling.
SB 10 Harmful to Law Enforcement
The system proposed by SB 10 would increase the burden on an already overworked police force, by increasing the resistance to a second arrest by anyone already on pretrial release. The wording of the bill would require an automatic remand of anyone who was arrested a second time while out on pretrial release for another offense. The wording doesn’t take into account the seriousness of the charges for either arrest, it simply demands automatic incarceration. This could create situations where individuals who know they face automatic jail time, if arrested again, might become very resistant, even violently resistant, to a second arrest.
SB 10 Harmful to LGBTQ Community
Violence against members of the LGBTQ community is so bad that as many as 85% of incarcerated individuals who identify as a sexual minority have to be placed in solitary confinement, often for their safety. Solitary confinement is, perhaps, an acceptable safety measure for convicted prisoners serving a sentence in a State Penitentiary, but it is impossible for individuals awaiting trial in many county jails to be placed in solitary confinement for their protection.
Cash bail has always provided a way for sexual minorities to immediately obtain release from overcrowded county jails after an arrest, to avoid being held with the general population where they are at risk. With the implementation of SB 10, however, members of the LGBTQ community will be held in the general population until their risk assessment is complete, a process that is estimated to take “no longer” than two days. Also, LGBTQ community members are most often arrested for charges related to domestic violence, a charge that would make them ineligible for pretrial release under the system proposed by SB 10. This could mean that LGBTQ defendants could be held for weeks, or even months, behind bars in county jails ill equipped to protect them, as they await trial.
SB 10 To Be Decided in November 2020
Despite passage in the California State House and Senate, the fate of SB 10 is still in question. Opposition to its implementation was so strong that it took less than 70 days for opponents to gather more than 575,000 signatures in support of a referendum that would place bail reform on the ballot in November 2020, for the voters of California to decide.
On Tuesday, November 3, 2020, voters in California will head to the ballot box to vote in the national presidential election and to determine the fate of SB 10. A yes vote will uphold the proposed legislation, allowing SB 10 to go into effect. A no vote will repeal the legislation, allowing members of the house and senate to go back to the drawing board, to perhaps discover reforms that would work better to reduce inequities in the justice system.
Vote NO on SB 10 Referendum
If justice reform and changes to the bail system are needed, as many believe they are, SB 10 is not the answer. When you go to the voting booth on November 3, 2020, vote “NO” on the referendum for SB 10.
