Bill botches bail reform

This week, the California State Senate will consider revisions to Senate Bill 10 that will eviscerate the right to pretrial release and betray the broad-based grassroots movement that has propelled money bail to the top of the state and national criminal justice reform agenda. Under the guise of replacing money bail with empirical risk assessment tools, the draft legislation would replace the presumption of release into the community with a presumption of jail pending trial for people facing criminal charges. In addition to trampling on fundamental constitutional rights, the bill would cost taxpayers untold hundreds of millions of dollars, funneling scarce resources into polices that actually increase crime rather than protect public safety. This is a far cry from the original version of SB 10, which had broad based support across the state and would have significantly improved procedural justice while saving tax dollars and improving public safety. Most of the bill's original sponsors, including the ACLU, no longer support it and neither should you.

The right to bail -- or pretrial release on monetary or nonmonetary conditions -- has been enshrined in the California constitution since its adoption in 1849. For good reason: A bedrock principle of our criminal justice system is that a person is innocent until proven guilty. But if the current version of SB 10 is enacted, California will turn that presumption on its head and become the state with the most repressive pretrial detention policies in the country.

The draft legislation would replace the existing presumption of release for all misdemeanor arrestees with a presumption of detention pre-arraignment for anyone booked on a laundry list of charges, for anyone with a prior serious conviction, for anyone who even once in the past five years failed to follow every condition of pretrial release, and for everyone arrested within five years for violating a court order (even if the arrest was itself unlawful). Imagine a person who was previously charged with shoplifting and was required, as a condition of release, to call pretrial services twice a week during the pendency of the case. They called as directed but pretrial services was understaffed and no one answered the phone or checked the voicemail, so the court was told the person didn't check in. Eventually the person was acquitted. Four years later, the same person is arrested for disturbing the peace: SB 10 would prohibit his or her release from jail pre-arraignment. The exclusions for possible pre-arraignment release on felony arrests are far broader, implicitly repealing the constitutional right to bail.

SB 10's framework for determining pretrial release after arraignment is even more problematic. This bill would implicitly repeal the right to pretrial release that is as old as the state itself. Traditionally, the government bears the burden of proving -- by clear and convincing evidence -- that nothing short of incarceration can protect the public or ensure return to court. This bill would replace that burden of proof with a system where those presumed innocent must prove they should not have to continue languishing in a jail cell. Under the new law, any person charged with a serious or violent felony would be presumptively detained. Any person convicted of a serious or violent felony in the previous 10 years would be presumptively detained, no matter how minor the new case. Any person deemed "high risk" by a risk assessment tool -- even though it is the judges themselves who determine what constitutes "high risk" -- would be presumptively detained. Most of these people have a constitutional right to be released from custody on appropriate conditions. All of them are presumed innocent.

The draft legislation isn't just unconstitutional. It is also bad policy. It would dramatically expand and prolong pretrial detention even for low risk arrestees. In fact, we should be doing exactly the opposite, not only because the Constitution requires it, but because it decreases recidivism. One study exploring the impact of short-term incarceration found that when defendants who deemed low risk and who were held in jail for just 2-3 days after arrest were 39 percent more likely to be arrested on a new charge while the first case was pending than those who were released on the first day, and 22 percent more likely to fail to appear. The longer the pretrial incarceration, the study found, the greater the likelihood of future arrests and failures to appear. The same patterns held for medium risk defendants who were in jail for short periods.

These results make sense because even a few days in jail destabilizes lives: loss of jobs, loss of personal property, impound of vehicles, deterioration of health/mental health, exposure to sexual violence, and even loss of custody of children. All of these collateral consequences of arrest can be mitigated, while generating substantial tax-dollar savings by expediting pretrial release. SB 10 would do the opposite. Expediting release is particularly critical for all those detainees who are wrongfully arrested. In San Francisco, for example, barely half of felony arrestees are ever charged with a crime. Yet under the new SB 10 most of them would be ineligible for any form of release for at least several days regardless of what the risk assessment report shows.

Putting aside the myriad problems with existing risk assessment tools -- racial bias; narrow reliance on rap sheets; system designs that trump the empirical assessment; oversimplified recommendations rather than actual statistical risk profiles; failure to consider how pretrial services can mitigate any risk -- the draft legislation creates so many exceptions and carve outs that it establishes a strong presumption of detention both before and after arraignment, regardless of empirical risk.

To be sure, the legislation calls for some positive changes: data collection, expedited appeals and a prohibition on charging defendants fees for court-ordered supervision. Most importantly, the legislation would eradicate the predatory for-profit money bail industry -- a goal of the reform movement and all those committed to equitable administration of justice. But replacing a wealth-based discriminatory system of determining pretrial release with a system where virtually everyone is detained pretrial is not the answer.

This is not the bail reform California needs. Join me and many of the bill's original cosponsors in opposing it.

Chesa has been part of the litigation team for leading case on bail reform, In re Humphrey, which will be heard in the California Supreme Court.