Bill to change bail system abandoned by liberal organziations

A bill that will overhaul the current system of bail in California passed the Assembly dispite fierce opposition, both from longtime opponents and former allies.

The bill envisions a procedure in which criminal defendants are assessed by a pretrial agency to determine their eligibility for pretrial release. It would demand nearly all people arrested on nonviolent felonies be released within 12 hours.

In addressing the Assembly floor, Robert Bonta argued the current system was broken, saying high-risk individuals can pose a risk if they have the means to post bail and that low-risk offenders can lose jobs because of extended detention.

Bonta said the authors of the bill relied on the judicial “deep dive” on the issue of bail reform.

“We will be moving from a money-based system to a risk-based system,” Bonta said on Monday. “Our current system judges individuals by the size of their wallet rather than by the size of their risk. In our current system, freedom and liberty are pay to play.”

But late and significant changes to the bill gave longtime supporters a reason to about-face. SB 10 was approved by the Assembly Appropriations Committee Friday but with 23 pages of amendments, including the creation of high-, medium- and low-risk categories and limiting the determination of release to the presiding judge.

Those changes, opponents say, caused the bill to fall far short of the kind of reform required to rectify the problem.

Before the bill hit the floor Monday, the American Civil Liberties Union — which had worked with lawmakers for two years to create the bill — reversed its support.

“Unfortunately, this amended version of SB 10 is not the model for pretrial justice and racial equity that the ACLU of California envisioned, worked for, and remains determined to achieve,” said the executive directors of the California ACLU in a joint public statement.

“We oppose the bill because it seeks to replace the current deeply-flawed system with an overly broad presumption of preventative detention,” the ACLU directors added. “This falls short of critical bail reform goals and compromises our fundamental values of due process and racial justice.”

In his remarks to Assembly members Monday, Jordan Cunningham, R-San Luis Obispo, focused on the reversal of support that immediately followed the publication of the latest amendments.

In addition to the ACLU, Cunningham also said the National Association for the Advancement of Colored People had pivoted to an opposition stance.

“Is that the indication of a fully-baked bill that we can get behind?” Cunningham said. “We’re changing the entire structure of the criminal justice system today. We’re going to take power away from judges and attorneys who can argue whether or not there should be bail and what it should be set at. This would wipe all that away and leave a bureaucracy.”

“I’m not sure this bill is even constitutional,” he added. “It’s a deprivation of liberty.”

Many proponents acknowledged the bill’s shortcomings but stressed the need forchanges to the current bail system.

“This may not be the perfect bill, but we have to do something,” said David Chiu, D-San Francisco. “This bill tries to strike the right balance between all the issues we’ve been confronted with. We have to move forward.”

California Attorneys for Criminal Justice and the California Public Defenders Association both dropped their support of the bill after the new version was unveiled. Chesa Boudin, a deputy public defender in San Francisco, said if the bill is enacted, it would face lawsuits immediately.

Boudin is representing a criminal defendant who the 1st District Court of Appeal decided could not be detained solely because he was not able to afford bail. In re Humphrey, 19 CA5th 1006 (2018). The state Supreme Court has granted review of the case.

But Boudin believes the changes in SB 10 have shown a departure from the Legislature’s commitment to changes to the bail system. With the amendments, he said the bill will increase pretrial incarceration rates and perpetuate economic disparities by establishing broad categories of people who can be detained in advance of trial.

“This bill looks nothing like the original SB 10, and it’s actually worse in many ways than the status quo,” he said. “As much as I love the idea of ending the money bail industry and of prohibiting charging my clients for the cost of pretrial supervision, I can’t support a bill that replaces those evils with the real prospect of universal pretrial detention.”

A spokesperson for Gov. Jerry Brown told reporters Thursday he was “open” to the revised bill.