California has approved a change to state law which will do away with bail. Only if the law stands, of course. As might be expected, loud voices have been raised in opposition.
In brief, SB 10 will do away with bail, and require each county to set up its own system of risk assessment to determine which defendants could be released on their own recognizance, be required to submit to electronic monitoring, or held in “preventive detention”.
Naturally, bail bond businesses are objecting the loudest, but they’re hardly alone. The ACLU is opposed, as are a large number of law enforcement organizations.
The primary objection–outside of the bail bond industry, which would be largely destroyed if the law stands–is that it places too much control in the hands of judges. With local jurisdictions able to assign their own weights to whatever factors they consider relevant, and individual judges free to interpret the guidelines, critics of SB 10 fear that it may increase the number of people held in jail pending trial, rather than reduce it.
And certainly, there are any number of ways such a system could be gamed to disproportionately affect minorities and the poor.
The bill was initially proposed in 2016, and has been substantially modified since then. Many of the groups who disapprove of the version just signed by Governor Brown approved of earlier versions. Even the primary author, Senator Bob Hertzberg (Democrat, Van Nuys), seems less than enthralled with the final version. The Chron quotes him as saying that “Our path to a more just criminal justice system is not complete.”
Cynic that I am, I tend to read his comment as “Well, it was the best I could do. Maybe we can fix it later.” And pessimist that I am, I’m doubtful whether fixes will be a high priority.
“Release fast, fix later” may work for software. Maybe. The jury is still out on that. But it’s a bad approach to lawmaking.
Opponents are considering challenging the law in court, and have already started a petition drive to put the question in front of voters in 2020. (The law will take effect in October of 2019 unless blocked in the courts. Or, if the referendum qualifies for the ballot, the law would go on hold.)
One additional factor that I haven’t seen mentioned in the press: it seems likely that under SB 10, electronic monitoring would become more common for pre-trial defendants. However, the defendant is required to pay a fee for the equipment. Seven bucks a day (according to an article from 2016) doesn’t sound like much, but that adds up quickly. If a defendant can’t afford bail, how likely is he to be able to afford two hundred dollars a month?
I’m generally in favor of doing away with bail, but I have to side with the ACLU* on this law.
* While I have some sympathy for the bail bondsmen, I don’t have a lot of patience for the “This change will put me out of work” argument in general, and even less in this case, where the change is intended to save the jobs of many, many more people.
The potential for abuse is too great, the approach is flawed, and the “fix it later” attitude is offensive. Scrap SB 10 and start over.