Bail changes move forward despite hold on SB 10, but critics unsure it’s moving in the right direction

When it comes to California’s cash bail system, both advocates and some critics agree on one point: that upcoming changes may replace cash bail with policies that uphold existing problems in the state’s criminal justice system, including lengthy pre-arraignment processes and a liability to discriminate against people of color.

Bail agents’ attorneys say those who can afford to make bail won’t be allowed to under the new arrangements while other stakeholders criticize pre-trial assessment tools that some pilot programs have found discriminatory.

Consensus on this issue was illuminated by a civil lawsuit that recently resulted in San Francisco County banning the sheriff from using the bail schedule during pre-arraignment. The recent settlement of Buffin v. City and County of San Francisco, CV15-04959 (N.D. Cal., filed Oct. 28, 2015) allows arrestees to be jailed for up to 30 hours before arraignment and requires the county to partially rely on criticized risk assessment tools to maximize efficiency. Riana Buffin and Crystal Patterson sued the county after they were separately arrested and denied release when they could not afford the bond set by the bail schedule. Buffin said she lost her job at Oakland’s airport as a result.

The Sept. 3 judgment by U.S. District Judge Yvonne Gonzalez Rogers approving settlement of their case ruled a public safety assessment of arrestees, which includes the results of an electronic test, must be submitted to the superior court within eight hours of booking. The assessment measures how likely it is an arrestee will pose a public safety risk or fail to appear in court and is meant to help the court decide whether to approve release prior to arraignment. If the court doesn’t reach a decision within 18 hours of booking, the results of the public safety assessment will determine whether the arrestee is released. Law enforcement officials can request a 12-hour extension for detainees if they believe they pose a public safety risk. Implementation of the judgment is pending agreement by the San Francisco Board of Supervisors to give additional funding to the program that provides public safety assessments in the county sheriff’s department. Phil Telfeyan, executive director at Equal Justice Under Law and an attorney for Patterson, said the settlement represents an improvement on the county’s existing bail system. “We think the solution we came to with Sheriff [Vicki Hennessey] is the fairest way to balance the needs of arrestees who are presumed innocent, versus the sheriff’s needs to thoroughly vet for public safety,” he told the Daily Journal. “Under the old system, only those who had enough money to pay bail could get out in ... approximately 10 hours. Under the new system, how much money you have is not going to [be] a factor. So rich and poor will finally be treated equally.”

The settlement also shifts the framework for who arrestees are viewed, he said. “Individuals who are arrested have not been convicted. They should be assumed innocent until they are proven guilty, and that’s what this solution captures. If there are no red flags, if someone’s got a non-serious charge, there’s a default for ... release.” But others are concerned eliminating the cash bail option in pre-arraignment will strain the efficiency of the pretrial system, arguing the settlement fails to address the increased pressure that could result from more arrestees waiting in jail.

Krista L. Baughman, an attorney with Dhillon Law Group Inc. who represented the California Bail Agents Association, the intervenor defendant in the suit, said there are already options for arrestees to pursue pre-arraignment release in San Francisco County without abiding by the bail schedule. She points specifically to Penal Code 1269C, under which arrestees can apply to be released for a bail amount that is lower than what the bail schedule mandates. “The settlement doesn’t actually change all that much other than getting rid of the bail option, which is half of people’s options,” she said. “I think there are going to be a lot more people waiting in jail while they wait to see a judge.”

Jeffrey Clayton, executive director of the American Bail Coalition, expressed similar concerns. “We’re going to disadvantage people that are [able] to post monetary bail and hold them in jail longer so that it appears more fair to those that can’t, rather than doing something about those that can’t,” he told the Daily Journal. “But it’s not going to be more fair. Everybody’s going to stay in jail longer.”

Electronic risk assessment tools are typically advocated as a way to absorb the stress of more detainees, but critics including Baughman are skeptical they will be effective. “I am not personally convinced that a computer test can accurately assess whether someone’s likely to return to court, or whether they’re a public hazard, which is what a judge is trying to do at arraignment,” she said.

In July, 27 researchers from Harvard, Princeton, New York University, UC Berkeley, Massachusetts Institute of Technology and Columbia University published a statement in response to the California Legislature’s passage of SB 10, which would have entirely phased out cash bail in the state by next month. The bill required some arrestees to be tested via an electronic risk assessment tool. The legislation is on hold pending a 2020 referendum launched by the national bail industry.

Colin Doyle, a staff attorney at the Criminal Justice Policy Program at Harvard Law School and a co-author of the statement, said while he is in favor of eliminating cash bail, he also believes electronic risk assessment tools mirror the bail system’s liability to discriminate against minorities.

“The challenge for the tools ... is just the classic computer science adage: garbage in, garbage out,” he said. “Tools can only ever be as good as the data [they] are trained on, and criminal history data, court data in the United States, is just infected with racial bias at every step in the process, so it’s unreliable.”

“That puts severe limits on any tool that you could create using that data, and the results that you would get are invariably going to be discriminatory against the same communities here,” he said. “Black people, and most especially black men, are who the tools are going to be discriminatory against.”

Doyle also resists the notion the tools can be improved.

“When we really dig into the mechanics of how these tools work, they’re limited not because their math is wrong,” he said. “Human behavior is just really hard to predict, especially something that’s so rare and also in a lot of ways underspecified. Violent crime is a huge category of different things and all kinds of different actions. ... The concern with these tools is that they cover up the uncertainty.”

Still, Sadik H. Huseny, an attorney representing plaintiff Patterson in the underlying lawsuit, is optimistic the county is moving in the right direction.

“I’m not surprised that there are studies out there that talk about the [public safety assessment] tool and other mechanisms that are all aimed at furthering how we can best make those calls in an imperfect system — how can we best make those calls as quickly as possible that an individual is not a public safety threat and [does not pose] a failure to appear threat,” he said.

“The good news ... is that there’s a system in place where judicial officers get that report ... and make an individualized determination within 18 hours for everybody, whether or not they have money,” he added. “That’s the sort of system that moves us further along the line towards constitutional equal protection and just due process rights of individuals in general: to be in jail as little as possible, consistent with again public safety and other issues.”