Bail system to change even as initiative challenges state law

SAN FRANCISCO -- Changes to the state's bail system will continue even if a voter referendum on the issue qualifies for the 2020 ballot, California Chief Justice Tani Cantil-Sakauye said this week.

"California case law has already changed the nature of bail," Cantil-Sakauye said during her annual meeting with reporters covering the high court on Tuesday.

"Already we're moving away from the traditional 'consult a bail schedule, set it and that's the end of it,'" she added.

Gov. Jerry Brown signed SB 10 this fall after two years of amendments and negotiations. The bill has critics on both sides of the aisle, but it did something that would have been unheard of a few years ago: set a clock ticking to phase out cash bail by next October.

The national bail industry quickly gathered $3 million to put a referendum on the 2020 ballot. Assuming it qualifies, SB 10 would be put on hold until that time.

Such an outcome looks increasingly likely. Last week, early counts from the Secretary of State's office showed about 27 percent of the signatures checked by county registrars were invalid. However, as of Wednesday, that rate had fallen to just 20 percent.

If these trends hold, those numbers would take the initiative out of the danger zone where it might not qualify, given that sponsors turned in around 200,000 more signatures than they need. This would leave the bail schedule itself in place until at least November 2020.

But experts within the Judicial Council of California confirmed this week that the referendum would only enjoin what is actually in the bill.

"The bail pretrial decision-making process already began to change in California before SB 10," the council's administrative director, Martin Hoshino, told reporters during Tuesday's meeting.

He pointed to funding approved during the 2014-15 budget year that funded pilot projects using risk assessment tools in 11 counties. Those will continue, and other counties would also be free to try their own projects.

One consequence of all this experimentation is that bail works slightly differently in dozens of counties in the state, Hoshino said. "We don't think that forecloses on our ability to continue on the work that is already underway," Hoshino said.

Cases challenging particular applications of the old bail system will also continue unhindered. This is significant, given that powerful individuals from Attorney General Xavier Becerra to the chief justice herself have said publicly that people should not be held in custody due to the lack of ability to pay bail.

SB 10 drew in part on the work of a task force Cantil-Sakauye convened that found money bail should be replaced with risk assessments.

Cantil-Sakauye specifically mentioned three cases pending in the state high court that could affect how much discretion judges have around bail now. The court requested supplemental briefings in all three cases in September in response to Brown's signing of SB 10.

The best known of these is In re Humphrey, S247278 (Cal., filed Feb. 27, 2018). The appellate court set a precedent of establishing a minimum standard for denying or setting a very high bail in criminal cases. The matter involved a $350,000 bail for a San Francisco man charged in a case involving robbery, burglary, and inflicting injury on an elderly person.

A second case asks if superior courts have the authority to set bail conditions in excess of the schedule amount. In re Webb, S247074 (Cal., filed Feb. 16, 2018). A third case looks at the circumstances when bail can be denied outright. In re White, S248125 (Cal., filed April 10, 2018).

SB 10's author has also introduced a new bill that would require counties to track "racial, gender, and economic disparities in pretrial release practices."

"SB 36 will build on the progress that our coalition has made on pretrial reform over the last two years by giving us the tools to address the issue of implicit bias," said Sen. Robert Hertzberg, D-Van Nuys, in a press release last week.