In a step intended to treat people in the criminal justice system more fairly regardless of economic status and reduce the number of people in custody awaiting trial, California Governor Jerry Brown on Aug. 28 signed a law, the California Money Bail Reform Act, that makes the state the first to eliminate cash bail.
When the law takes effect on Oct. 1, 2019, whether a criminal defendant is released or detained before trial will no longer depend on how much money he or she has or can collect to post bail. That determination will rely instead on an assessment of the defendant's risk to public safety and risk of failing to appear in court, with the decision ultimately left up to the judge.
Currently, counties set bail based on the kind of alleged infraction, misdemeanor or felony they are charged with.
Access San Mateo County's bail schedules here.
Under the new law people arrested or detained for most misdemeanors would be booked and released without assessment. Those considered to be "low risk" through an assessment process would also be released.
Defendants deemed "medium risk" (as defined by county superior courts) could also be released.
People would be detained while awaiting trial only if an assessment finds them to be "high risk" and determines that other forms of pretrial supervision would not be likely to assure public safety or their appearance in court.
San Mateo County District Attorney Steve Wagstaffe said he supports the law. "I think it's a good evolution," he said.
Currently, the bail system favors the rich, he said. The existing system penalizes lower-income, low-risk defendants because they are unable to pay low amounts of bail and avoid being detained.
It also enables wealthy defendants who are considered high-risk to skirt detention, because they are able to pay exorbitant amounts for bail, he noted.
"They can afford to get out because they have wealth," Wagstaffe said.
The county has one defendant out of custody who has posted about $62 million in property bonds as bail, he noted, and many others are out on bail of one, two or three hundred thousand dollars.
(The $62 million bail was posted by Tiffany Li, a Hillsborough woman who has been charged with murder and is accused of conspiring with others to kill the father of her two children. Nearly 20 friends, family members and business associates offered their properties as collateral for bail, according to the Los Angeles Times.)
Each county will be permitted to choose its own "risk assessment" tool, which is likely to take the form of a survey or questionnaire. A controversial last-minute change to the bill gave judges broader decision-making authority beyond the risk assessment tool.
Some favored the discretion granted to judges, while others expressed apprehension that such discretion could result in more people being detained before their trial than the current system.
Wagstaffe said the judicial discretion provision was a critical factor in earning his support. He used a baseball analogy to explain his position, comparing an umpire to a judge and a computerized strike-zone algorithm to a risk-assessment survey.
Does the umpire/judge make mistakes? Sure, he acknowledged. "We disagree with (judges) on an enormous number of things. I trust them overall to do the right thing."
"We're simply not at a point in this state where we're ready to say we do not trust judges," he added. "I'm not ready to turn part of criminal justice over to a questionnaire."
On the other hand, the American Civil Liberties Union of California argued that the law doesn't address the risk of racial bias affecting judges' decisions, nor does it promise to reduce the number of people who are detained while awaiting trial.
Abdi Soltani, executive director of the ACLU in Northern California, said in a written statement: "We are disappointed to see Senate Bill 10 signed into law. SB 10 is not the model for pretrial justice and racial equity that California should strive for. We call on lawmakers to be vigilant to ensure racial justice and fairness in our pretrial system."
In an Aug. 24 letter urging Gov. Brown not to sign the bill, Human Rights Watch predicted that "SB 10 will massively increase preventive detention, not lower pretrial incarceration rates."
According to Lisa Maguire, assistant chief defender of the San Mateo County private defender program, there's still a lot of uncertainty about how subjective the assessment will be, or how subjectively it will be interpreted by judges.
Maguire said she supports the idea behind the new law, but noted some "potentially problematic" aspects of the legislation. "We would rather see our clients not being held in custody because they can't afford to post bail. That's obvious," she said.
However, she noted, if either the assessment or the deciding judge carries inherent prejudices, there's a risk that people could be unfairly categorized as high-risk, and then they wouldn't have another avenue for pretrial release.
"Whether or not (SB 10) reduces the jail population is going to be interesting to watch," she said. "There's just no way to know until the assessments start getting applied what the outcomes are going to be."
The day after the law passed, bail industry groups launched a referendum drive against it, according to the Sacramento Bee. They have 90 days to gather about 366,000 valid signatures from state voters to place the law on hold and on the November 2020 ballot.
They may also have a compelling constitutional argument in their favor, Wagstaffe said. According to the California Constitution, people may be released on bail unless they are charged with a capital offense or specific other felonies, he explained.
In the meantime, he said, he and others will start working on developing a system in the county that will be ready in a little over a year, when the law takes effect.
"We're going to make this work," he said.