Money bail foe says he isn’t done trying to destroy bond industry

Sen. Bob M. Hertzberg was the man who ended cash bail in California ... until he wasn't. But the veteran attorney and lawmaker said the successful referendum invalidating his law doesn't mean he's done with the bail industry.

The Van Nuys Democrat told the Daily Journal he's hopeful the California Supreme Court will end bail through a pending case. He's also planning new legislation to rein in the industry next year, despite the decision by the state's voters.

Meanwhile, the referendum that took down his bail law has given Hertzberg a new target: the referendum process itself. Hertzberg is considering introducing his own initiative through the Legislature to change the rules around referendums. Most of these rules are laid out in the state Constitution, and therefore require an initiative and voter approval to change.

In 2018, Gov. Jerry Brown signed Hertzberg's SB 10, which would have phased out cash bail in California. But this month California voters overturned his decision, rejecting Proposition 25 by 56% to 44%. The bail industry placed the referendum on the ballot.

Hertzberg had a sharp message for those who say he should respect the will of the voters.

"I had some very high level politicians call and congratulate me on bail because they didn't understand what a 'yes' was and what a 'no' was," Hertzberg said. "I'm looking at the prospect of introducing a constitutional amendment next year to clarify how referendums work."

"I think they absolutely knew what they were voting for," responded Jeffrey J. Clayton, executive director of the American Bail Coalition and an attorney who has worked for bail industry clients. Clayton pointed to 55 civil rights groups he said opposed SB 10 and Proposition 25.

Hertzberg said he is considering a bill to require bail companies to reimburse police departments when they apprehend a bail client who doesn't appear for a court date. He is also likely to introduce legislation to impose consumer protection laws on bail companies, possibly soon after the new Legislature convenes Dec. 7.

This could be a repeat of a 2019 effort that stalled in the legislative committee process. SB 318 would have required bail agents to offer contracts in several languages and placed them under the purview of two state consumer protection laws: the Consumer Legal Remedies Act and the Rosenthal Fair Debt Collection Protection Act.

Hertzberg introduced a similar bill in February. SB 960 went nowhere during a 2020 legislative session interrupted by the coronavirus pandemic.

Clayton called these ideas "unnecessary." He said his industry is in regular contact with the California Department of Insurance and noted the failure of Hertzberg's two recent consumer protection bills.

"We don't have problems with translation of contracts and that sort of thing because our bail agents represent the communities they serve," Clayton said.

Of a possible bill to require bail agents to reimburse police, Hertzberg said, "Why shouldn't the police departments be reimbursed? These guys are taking the profits but they aren't taking the burden."

Clayton said the reimbursement idea is more complex than it might appear, in part because courts are a party to bail contracts. These contracts are written to give both defendants and bail agents a financial incentive.

Judges grant bail and issue the orders to appear. Police follow up when the court order is flouted.

In a 2018 editorial, the late-San Francisco Public Defender Jeff G. Adachi argued that bail agents "assume no risk at all."

He wrote, "The industry has lobbied for regulations that make it very hard for the state to collect on forfeitures. In spite of the media myth of the swashbuckling bounty hunter, in California, bail agents don't spend much time pursuing no-shows."

But Adachi's successor, Manohar P. Raju, has emerged as a key opponent of SB 10 and Proposition 25. Like several others on the defense side, he has criticized the risk assessment tools that have replaced bail in some cases.

Raju's office represents a criminal defendant whose bail is pending before the California Supreme Court, which must test an appellate decision finding courts must consider a defendant's ability to pay when setting bail. The case has been on hold for more than two years, pending the results of Proposition 25.

According to a spokesperson for Raju, the court is likely to take up Humphrey early next year. In re: Humphrey, S247278 (Cal. Sup. Ct., filed March 6, 2018).

Hertzberg said if the court upholds the decision, the "bail industry is for all intents and purposes gone."

The longtime legislator turns 66 this month and is entering his final two years in the state Senate. He said he is likely to turn his attention back to his longtime interest in the initiative and referendum process. As Assembly speaker, he commissioned a 2002 report that recommended greater financial transparency from initiative sponsors and legislative hearings on initiatives that would seek legislative compromises.

Hertzberg said he believes the referendum process is important. But he added he would like to see two changes. First, he said it is confusing that it requires voters to vote yes to keep a law.

This means those pushing a referendum are seeking "no" votes, which are easier to get, he said. UC Berkeley School of Law Dean Erwin Chemerinsky is among those who have said they believe Proposition 25 confused voters.

Second, Hertzberg said he'd like to change a rule that requires referendums be placed at the end of the ballot, where exhausted voters sometimes abstain or default to no. He pointed out that Proposition 25 received fewer total votes than any of the other 11 initiatives on the ballot.

"That gives a tremendous advantage to anyone who wants to overturn the Legislature," Hertzberg said.