Bipartisan state bill aims to improve bail pretrial assessment

Members of the state Senate Public Safety Committee provided a display of bipartisanship in the money bail debate on Tuesday, unanimously passing a bill to improve pretrial assessment.

SB 36 is authored by Sen. Robert Hertzberg, D-Van Nuys, an attorney who also authored SB 10. This is a controversial law signed last year to phase out cash bail in California and replace it with procedures to evaluate the risk a defendant will flee or commit more crimes.

But SB 10 was widely criticized by law enforcement groups and is now on hold pending a 2020 referendum.

Hertzberg said his new bill, which has received no official opposition, is needed whether or not SB 10 is approved, because risk assessment tools are already in widespread use.

"It turns out that 49 of the 58 counties in California have risk assessment tools," Hertzberg told the committee.

Almost none of the risk assessment methods in use have been independently assessed, he said. SB 36 would require counties to make their risk assessment processes public, then track outcomes and report them to the Judicial Council.

The Judicial Council would also validate risk assessment methods every six months and order changes if needed. Hertzberg noted the bill would not require the use of risk assessment tools.

"Risk assessment tools lack openness and transparency necessary for an honest evaluation and the elimination of disparate outcomes based upon race of economic status," he said.

Some traditional critics of the money bail system have also raised concern with SB 10's reliance on risk assessment tools, saying they can be formulated in a way that also discriminates against racial minorities and low-income defendants.

Tom Hoffman, former director of the state Division of Parole Operations, said the data gathering and assessment called for in SB 36 offers the best chance to rid these tools of inherent bias. The process will also help to identify other problems, such as defendants with particular characteristics not showing up for court dates.

"The tools can be adjusted so the thresholds for the ratings reflect the reality," Hoffman said.

"We have a process for mitigating biases, biases based on race, gender, income, disability status," said Glenn Backes, lobbyist for the Ella Baker Center on Human Rights, a sponsor of the bill. "It's a data bill. It's pretty straightforward."

The hearing came one day after the Legislative Analyst's Office raised serious concerns with a proposal in Gov. Gavin Newsom's budget to spend $75 million to fund a pretrial assessment pilot project. The office said that proposal lacked specific goals and parameters, and recommended the Legislature reject the spending unless these shortcomings were addressed.

Tuesday's vote on SB 36 came on a busy day for criminal justice legislation. The Senate Public Safety Committee also unanimously passed SB 22, a bill calling on the state to address its backlog of untested rape kits. The bill changes current law from saying counties "should" test rape kits to stating they "shall" test them, and appropriates $2 million in funding.

The Assembly Public Safety Committee passed AB 972, a bill that would automatically change low-level felony convictions covered under Proposition 47 to misdemeanors. The 2014 initiative currently requires a criminal to petition the court for this change.