Hidden Costs of Bail Reform: How Bail in California Could Go from Hurting Poor Defendants to Hurting Poor Counties
| Publication year | 2019 |
| Author | By Katherine Carey* |
By Katherine Carey*
Bail reform has become a popular topic within criminal justice reform, even capturing the attention of such notable celebrities as Jay Z1 and John Legend.2 Some states like Illinois Kentucky, Oregon, and Wisconsin abolished commercial bail entirely starting in the 1970s.3 Washington, D.C., began moving away from cash bail in the early 1990s and, in 2017, Washington, D.C. courts released 94% of defendants without cash bail.4 Some states such as New Mexico and New Jersey have just recently altered their bail systems to reduce reliance on money bail.5
Yet in August 2018, California became the first state to pass a law fully abolishing money bail.6 Although not everyone agreed on the final bill, district attorneys,7 public officials, and criminal justice reform groups8 managed to unite around the general goal of abolishing money bail to create a more fair and equal pretrial detention system that holds defendants based on their risk to safety instead of their ability to pay. While those groups remain in agreement on that overall goal, they differ on the way forward in light of recent developments.
In December 2016, Senator Bob Hertzberg introduced Senate Bill 10 (SB 10) which aimed to reform bail and pretrial detention practices in California.9 However, in its final month as a bill, legislators altered it to give judges increased discretion and allow district attorneys to file for preventative detention.10 As a result, groups including the ACLU and Silicon Valley De-Bug revoked their support, instead opposing SB 10.11 Governor Jerry Brown nevertheless signed it into law on August 20, 2018, stating, "Today, California reforms its bail system so that rich and poor alike are treated fairly."12 The bail bond industry— which stands to be put out of business if a no-money bail reform ultimately passes—quickly organized in the wake of SB 10's passage and succeeded in getting enough signatures to put the issue on the 2020 ballot as a referendum.13 Thus, SB 10's implementation is stayed until California citizens either affirm or reject SB 10. If affirmed, SB 10 would go into effect after November 2020; if rejected, California would be back to the pre-SB 10 status quo.
Although SB 10 is a state-wide mandate, it gives counties vast discretion in four primary areas:
1. Pretrial Assessment Services: SB 10 requires all counties to implement Pretrial Assessment Services programs which will use risk assessment tools to evaluate people's danger to the community and risk of failing to appear at future court dates.14 It gives counties discretion to decide whether this Pretrial Assessment Services program should (1) be staffed by employees of the court, (2) be staffed employees of a public entity contracting with the court, (3) belong to an adjoining county but be employed by the "home" county, or (4) be a regional consortium.15
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2. Risk Assessment Tool: SB 10 requires the court in each county, in consultation with its Pretrial Assessment Services program, to select a pretrial risk assessment tool to help evaluate a person's danger level to the community as well as his likelihood of reappearing in court.16 Such tools take into account of factors like criminal history, employment record, and family or social ties. The tools must come from a pre-approved list and be locally validated using data from that community.17
3. Medium-Risk Category: While SB 10 clearly lays out rules for how courts must treat low- and high-risk individuals, it leaves the decision about to how to treat medium-risk individuals to the local courts (subject to some restrictions).18 Each county's selected rule must be in line with the California Rules of Court adopted by the Judicial Council and may not require all medium-risk defendants to be held, but it is allowed to add to the list of offenses and factors that mandate detention.19
4. Spending: Under SB 10, the state will provide funding to counties to implement both the pretrial assessment services and the pretrial supervision services. The amount for assessment services will be determined by a funding formula that takes account of factors like the number of defendants who need to be assessed, the costs to courts and pretrial services of making release and detention decisions, and the direct and indirect costs of the staff needed to conduct the assessments.20 The amount for supervision services would also be determined by a formula that considers factors like the number of people under county supervision, the level of supervision they need, the population of the county, local arrest rates, and the staffing costs.21 Both formulas take account of regional variances in costs and pay scales.22
The Judicial Council plays an important role in each of these categories.23 First, as needed, the Judicial Council will help courts develop contracts with the local groups acting as the Pretrial Assessment Services for their counties.24 Under SB 10, Pretrial Assessment Services' main duty is to prepare a report about the defendant to inform the court's decision on release versus detention.25 This report will include recommendations for conditions of release, the slate of options for which will be set by the Judicial Council.26 The Judicial Council is also responsible for prescribing the "standards for review, release, and detention" that Pretrial Assessment Services and the courts will rely on when making pre-arraignment decisions.27
Second, SB 10 mandates that each county's Risk Assessment Tool be selected from a list approved and maintained by the Judicial Council.28 The Judicial Council will also be responsible for establishing instructions for how courts consider the information from the Risk Assessment Tool.29 SB 10 additionally entrusts the Judicial Council with the discretion to explain the elements that make a tool "validated," explain the necessity of validation, set rules on the required frequency of when the tool must be updated, and confront the role of implicit bias in these assessment tools, along with directions for how to mitigate that bias.30
Third, the Judicial Council under SB 10 is responsible for establishing the parameters of what counties can do with defendants labeled "medium-risk."31 SB 10's only guidance to the Judicial Council when setting these criteria is that it must take account of "the safety of the public and the victims, the due process rights of the defendant, and availability of local resources to effectively supervise individuals while maximizing efficiency."32
Fourth, the Judicial Council will be involved in calculating the levels of funding needed by Pretrial Assessment Services,33 the agencies overseeing pretrial supervision services,34 and the courts as a result of these increased proceedings.35 Relatedly, the Judicial Council will be responsible for setting data collection points and actually storing that data, including the number of people assessed by each county's tool, the defendants' risk assessment levels, whether defendants were released, how they were released, and with what conditions.36 Some of this data would then be used to inform the funding decisions in which the Judicial Council participates.
The first and most obvious answer is that having the Judicial Council set only the outer boundaries could lead to huge differences among counties, which is inherently unfair. Previous experiences with giving counties discretion in the criminal justice context has already led to major, meaningful discrepancies, which is informative for SB 10.
Current money bail amounts are an excellent example. Each county sets its bail schedule annually, and they vary enormously. For example, a violation of Penal Code § 203...
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