California Gov. Jerry Brown (D) signed legislation on Tuesday to eliminate money bail and replace it with a system of risk assessment to determine whether defendants can be safely released from jail while awaiting trial. It’s the first state to legislatively end the use of all cash bail.
In most states, judges can set a sum of money that defendants must put up ― with or without the help of a bail bondsman ― in exchange for their release from jail before trial. Courts typically aren’t required to consider the defendant’s ability to pay or risk profile, which means poor people facing only lower-level charges are often left to languish in jail for weeks or months before any determination of guilt.
The California Money Bail Reform Act will upend this system by prohibiting judges from setting monetary payments as a condition for pretrial release.
Criminal justice reformers had initially applauded the bill, saying it was a necessary change to a cash bail system that disproportionately favors wealthier detainees and leads to overcrowding in jails.
But in recent weeks, the American Civil Liberties Union, the Essie Justice Group and other critics of the system came out against SB 10, arguing that it gave judges too much discretion to simply refuse to release defendants, including those who might not constitute a flight risk or a danger to public safety.
Beginning Oct. 1, 2019, California jurisdictions must use pretrial assessment algorithms to determine whether defendants awaiting trial can safely be released into the community and how likely they are to return for future court dates. The algorithm takes into account a number of factors, including the severity of the charges and the defendant’s past criminal record. Judges may deny release for those determined to be too high of a risk.
Critics have raised concerns over a provision in SB 10 that gives judges discretion to order “medium risk” defendants to be held before trial as well. They worry that too many medium-risk defendants will be left behind bars and that those who remain in jail will disproportionately end up being people of color.
In a joint statement on Tuesday, three California ACLU directors ― Abdi Soltani, Hector Villagra and Norma Chávez Peterson ― said SB 10 doesn’t go far enough. The new law “cannot guarantee a substantial reduction in the number of Californians detained while awaiting trial, nor does it sufficiently address racial bias in pretrial decision making,” they said.
The legislation’s authors and other supporters meanwhile celebrated the signing of SB 10.
“Our path to a more just criminal justice system is not complete, but today it made a transformational shift away from valuing private wealth and toward protecting public safety,” said state Sen. Robert Hertzberg (D), the bill’s sponsor, in a statement.
Lt. Gov. Gavin Newsom (D) declared, “A person’s checking account balance should never determine how they are treated under the law.” And at the bill signing, Brown said SB 10 would make it “so that rich and poor alike are treated fairly.”
According to a 2017 report by Human Rights Watch, the majority of inmates in California’s county jails are there because they lack the funds to pay for bail. Prior to SB 10, California’s median bail rate was five times higher than it is in the rest of the country. And the pretrial detention system has disproportionately impacted people of color. In San Francisco, for instance, the rate at which black defendants are booked into jail is nine times higher than it is for white defendants.
Ending money bail in California sends “a clear message that this practice is unfair, ineffective, and a waste of public resources,” said Cherise Fanno Burdeen, chief executive officer of the Pretrial Justice Institute, a nonprofit that advocates for bail reform around the country.
But the new law is just a start, she added. “California must take steps to ensure changes in court culture as well,” Burdeen said. “The ultimate success of this legislation hinges on criminal justice system stakeholders implementing changes that result in substantially fewer people in jail.”