The California Bail Reform Act, Senate Bill 10, proposes to eliminate the bail fee system, but could replace one harmful system with another. The money bail system must be stopped: it undermines the presumption of innocence, leads to false guilty pleas, and disproportionately affects racial minorities and indigents. However, Senate Bill 10 is unlikely to promote pretrial justice and proscribes procedures that could violate due process.
First, Senate Bill 10 excludes broad categories of people from release from custody pre-arraignment. This includes low-level violations if the person has a pending case, and persons arrested for restraining order violations (even if the arrest turned out to be wrongful or the restraining order invalid). Further, the bill would give local courts practically unlimited power to carve out other exclusions from release, resulting in county courts having the ability to detain practically anyone accused of a crime. These overbroad categories render meaningless the presumption in favor of releasing all but a specified few defendants before trial.
Second, the bill provides unfettered discretion for judges at arraignment to order preventative detention. For instance, a court would be able to order detention if the defendant has a pending case or is on probation, regardless of how minor the previous and new charges are. The new system would allow judges to inappropriately hold people in preventative detention without having to set a bail amount.
Third, the incarceration decision is influenced by profile-based risk assessment tools that are not objective assessors of risk. These risk assessment tools take limited information about an individual—including arrest and conviction history—to create a profile, then make a statistical estimate of the likelihood that individual will get re-arrested or miss a court date based on data about other people with similar profiles. These tools tend to reinforce the system’s ingrained biases and lack transparency.
The risk categories required in the proposed legislation are policy choices, meaning that whoever controls the implementation of the tools can decide how broad to make each category. This adjustability of scoring is significant given the proposed scheme in which anyone labelled “high risk” cannot be released pre-arraignment and will have a presumption of preventive detention.
Fourth, the bill would make the probation department responsible for recommending release or detention and conditions of supervised release, while allocating supplemental funding for probation departments depending on how many people they supervise and what level of supervision.
Senate Bill 10 must be reformed to provide for community oversight. It should also include rules requiring judges to look at each defendant’s unique circumstances, and limit the power of county courts to create overbroad categories for presumptive detention.
In the meantime, defense lawyers should continue to thoroughly interview clients about their backgrounds and present detailed, individualized submissions on bail. For instance, if a client falls within a high-risk category for absconding, the defense lawyer should be prepared to show the court that this client has never missed a court date and has strong ties to the community.
Thorough preparedness will also strengthen a client’s chances at release. In my practice in Los Angeles, I prepare both written and oral submissions whenever possible so that I have already presented my client in a favorable light to the judge before the bail hearing. This upfront work will help ensure the court and prosecution are aware of the factors favoring release in spite of the problems with the new bail system.