Future cloudy for bill to change state bail system

The state Senate voted this week for final passage of a bill that would eliminate cash bail in California. Gov. Jerry Brown is widely expected to sign the bill.

The bigger question is what happens next.

Many of the progressive groups that have championed SB 10 for the past two years turned against it due to late amendments they say could result in more people being incarcerated before trial. Both liberal and conservative groups have said they are likely to sue to stop SB 10 once it goes into effect.

Even if SB 10 survives, the state faces the unwinding of a more than century-old industry that employs thousands, accompanied by the corresponding creation of a potentially large bureaucracy that has not yet been funded to fully implement the bill. And there are multiple pending court cases that could affect -- and be affected by -- the rollout of SB 10.

"There are advocates who say this will result in mass incarceration," SB 10's author, Sen. Robert Hertzberg, D-Van Nuys, told the Senate before the 26-12 party line vote. Defending his bill against some of its longest-standing supporters was probably not what Hertzberg envisioned when he embarked on what could be the defining battle of his legislative career. But that was before the bill was almost entirely rewritten several days ago and quickly passed.

"We obviously recognize this is a significant step forward because for-profit bail is clearly predatory," said Jess Farris, an attorney and director of criminal justice policy at the ACLU of Southern California.

But she said her organization opted to go from supporting to opposing SB 10 because of its reliance on risk assessment tools that she says have been shown to be racially biased. That, and the broad discretion it gives to courts and judges could result in a system that is unevenly implemented across the state and could result in more people being held, she said.

The ACLU has called for an independent risk assessment agency, such as Santa Clara County's Office of Pretrial Services. This is among the many modifications to the law she said the organization hopes to discuss with the next governor.

"We've already seen it work in different cities in our own backyard. Places have already taken this on and are showing us what best practices look like," Farris said.

Meanwhile, a case headed to the state Supreme Court could help define the scope of judges' discretion in releasing arrestees. In re Humphrey, 19 CA5th 1006 (2018). A lower court found it improper to detain someone for the lack of ability to pay bail, but the high court will likely need to weigh on what parameters can be considered.

Then there's the other major bail case to come out of San Francisco, Buffin et al. v. City and County of San Francisco, 15-CV4959 (N.D. Cal., filed Oct. 28, 2015). In the federal lawsuit, plaintiffs claim excessive bail violates equal protection and other constitutional rights.

Harmeet Dhillon, who is representing the California Bail Agents Association in that case, said her team is not altering their preparations for the Sept. 17 trial at this point. But she agreed with some liberal critics of SB 10: the law is likely to be challenged in court if signed.

"Our viewpoint is that SB 10 is unconstitutional because it eliminates a constitutional right under the California and federal constitutions to bail," said the founder of Dhillon Law Group Inc. in San Francisco.

Such a legal challenge would likely come from an arrestee who can make a good legal argument they would have been let go from custody under the old regime but are now held without the right to pay bail, she said. A plaintiff could also point to the uneven interpretation of the law across different counties.

Dhillon -- the current RNC Committeewoman for California -- and other conservatives pointed to an 11th U.S. Circuit Court of Appeals ruling on Wednesday they say would help their case. Walkerv. Calhoun, 17-13139 (11th Cir. 2018).

The case challenged a standard bail amount imposed for most minor offenses. By a 2-1 vote, the panel threw out the specific bail schedule, but rejected most of the plaintiff's constitutional arguments and affirmed the constitutionality of cash bail.