Judicial Council to vote on plan to spend $68M on pretrial detention pilot projects

A law phasing out cash bail in California is on hold, but the Judicial Council is still moving forward aggressively on changing the way pretrial detention is handled in California.

On Friday, the agency will vote on a proposal to spend $68 million in 16 counties to test pilot projects designed to improve pretrial outcomes. The money would come from $75 million Gov. Gavin Newsom included in his budget proposal that was approved by the Legislature.

The lion's share of this money, $41.2 million, would go to three large counties: Alameda, Los Angeles and Sacramento. The remainder would go to medium-sized counties such as San Joaquin and San Mateo or small counties like Calaveras and Modoc.

A total of 31 courts submitted applications. The proposals were winnowed down over by a 12-member Pretrial Reform and Operations Workgroup, chaired by Judge Marsha G. Slough of the 4th District Court of Appeal, Division 2. When she convened the working group in January, Chief Justice Tani G. Cantil-Sakauye charged it with finding "safer and fairer alternatives" to cash bail based on "best practices."

The Judicial Council didn't immediately release details about the individual proposals. But according to materials provided by the agency, "The projects aim to increase the safe and efficient release of arrestees before trial; use the least restrictive monitoring practices possible while protecting public safety and ensuring court appearances; validate and expand the use of risk assessment tools; and assess any bias."

In practice, they are expected to focus on things like software that would help determine which defendants pose a flight risk or an immediate danger of violence and monitoring programs gauged to assess risk that would allow more defendants to stay out of jail before trial.

The money comes with a number of strings attached. It can't go toward spending that would have taken place anyway. Programs can't release anyone who would not be eligible for case bail as laid out in the state Constitution, namely capital crimes, felony sex offenses and those who pose a significant risk to the public or individuals.

Nor can it fund projects that would entrust decisions on release with someone who is not a judicial officer. Courts must agree to open their programs up to a Judicial Council audit and to allow the agency to review any contracts it signs. Pilot projects can run through the end of 2021.

The pilot projects follow multiple years of fights over the future of cash bail in California.

Aside from multiple legal cases challenging the constitutionality of bail, the state passed a law last year intended to phase out the practice of charging defendants for pretrial release. SB 10 is on hold pending the outcome of a 2020 referendum put on the ballot by insurers who underwrite the state's bail industry.

The issue of assessment tools cropped up in the effort to pass SB 10 on the grounds tools and procedures used in determining whom to the release may have built-in biases.

The ACLU and some other groups withdrew their support for the bill late in the last year's legislative session after it was heavily amended to, in the words of a press release from the group, rely on "an overly broad presumption of preventative detention" and allow judges more discretion about whom to detain.