Prosecutors' and law enforcement groups speak out against proposed bail revision

Law enforcement and prosecutors' groups are voicing opposition to proposed legislation to revise California's bail system introduced earlier this month by two state legislators.

Meanwhile, the California Bail Agents Association has also gone on the offensive, seeking to intervene in one of two ongoing lawsuits challenging the constitutionality of California bail.

The bills by state Sen. Robert Hertzberg, D-Van Nuys, and Assemblyman Rob Bonta, D-Oakland do not implement new procedures for pretrial detainees, but "declare the intent of the Legislature to enact legislation that would safely reduce the number of people detained pretrial, while addressing racial and economic disparities."

They also call for a system based on individual evaluation of an arrestee's risks of flight or future offenses.

But local organizations, including the Los Angeles-based Association of Deputy District Attorneys and the Association for Los Angeles Deputy Sheriffs, have already spoken out against any proposed changes, citing financial and public safety grounds.

In a newsletter, the ALADS expressed concern that if set bail schedules were eliminated, it could lead to an unwieldy, expensive system. ALADS' board argued arrestees would have to be brought before a 24-hour staff of judicial officers, deputy district attorneys, defense attorneys, bailiffs and other court personnel at taxpayers' expense.

Under such a system, the arresting deputy would have to be present to give a probable cause declaration, which would take officers off patrol, "a consequence that staffing-crunched departments like the LASD could ill afford."

A pilot pretrial services program in Orange County, limited to low-level offenses and felonies that can be sentenced to local jails under AB 109, does have 24-hour staffing. Nora Sanchez, director of operations for Orange County Superior Court, said two pretrial services officers stationed at the county jail cover each shift. These officers act as the liaison to an on-call magistrate, Sanchez said, who ultimately makes any decision about release.

Orange County's is one of a handful of such pretrial services programs being tested around the state, Sanchez added, noting, "Not every county is able to support 24/7 staffing."

District Attorney organizations have also expressed concern that bail revision could undermine California's criminal justice system, particularly as the state is assessing the effects of Proposition 47, a 2014 ballot initiative that reduced some felonies to misdemeanors.

According to Michele Hanisee, the current president of the Association of Deputy District Attorneys, Prop. 47 increased failures to appear in some counties. Hanisee asserts that changes to the bail system would only heighten that increase.

"Some could argue the current system does not penalize the poor, but targets the rich," Hanisee said in a statement. "A very wealthy person charged with a violent crime will see bail often increased to reflect the fact that the standard bail amount is a less meaningful incentive to appear in court than it would be to the average person charged with a crime."

Inability to pay, Hanisee argued, is precisely the point of bail. "Every single person charged with a crime in California who is in custody pending arraignment or trial (other than those charged with capital murder which carries no bail) is there because the bail was set at an amount they were unable to pay," she wrote.

"Eliminating commercial bail for people charged with crimes who are not a danger to society does not jeopardize public safety," countered Hertzberg.

Meanwhile, a pair of legal challenges to California's bail system are moving through federal courts. Last week, Attorney General Kamala D. Harris said she would not intervene to defend the bail system in Buffin et al. v. City and County of San Francisco, 15-CV4959 (N.D. Cal., filed Oct. 28, 2015). This followed San Francisco City Attorney Dennis Herrera's announcement last month that he wouldn't defend the suit either.

On Tuesday, attorneys for the California Bail Agents Association filed their fourth motion to intervene in Buffin. The filing submitted by Harmeet K. Dhillon of Dhillon Law Group Inc. in San Francisco argued CBAA "has a direct and unique stake in the outcome of this case."

Without a defense, it states, the "CBAA's entire industry would be destroyed overnight."

lj_williamson@dailyjournal.com

malcolm_maclachlan@dailyjournal.com