Is SB10 worth the cost?
This November, California voters will have the opportunity to vote on criminal justice reform and make a serious decision: should the state end the former cash bail system for a new risk assessment system? Proposition 25 is a referendum on Senate Bill 10 (SB10), which was signed by Gov. Jerry Brown in 2018 and created a risk assessment system to be used instead of bail. However, immediately after signing SB10, the bail industry filed a referendum on SB10, as this bill would have eliminated the cash bail industry in California. David Quintana, a lobbyist for the California Bail Agents Association said, “You don’t eliminate an industry and expect those people to go down quietly.” This political clash has led to Proposition 25, which allows California voters to decide on the measure.
Since 2018, the enactment of SB10 has been put on hold. Voting yes on Prop 25 would enact SB10, which would create a risk-based assessment system in local courts to determine whether a defendant should be jailed pretrial or not. The main concern with establishing Prop 25 is this aforementioned “risk-based assessment system.” Proponents of Prop 25 celebrate eliminating an outdated system that discriminates against racial and socioeconomic backgrounds.
Critics say that this risk-based assessment system does not solve anything, as it replaces cash bail with another arbitrary system. Knowing the pernicious effects of the cash bail system, should Californians vote yes on Prop 25?
California’s cash bail system, although controversial, has been relatively unchanged for decades. At its simplest terms, bail acts as a down deposit for court appearances. When charges are filed against a defendant, a judge decides whether to afford bail or not. The judge also decides the bail amount — a huge part of the controversy over cash bail. When the judge settles on an amount, the defendant can pay this amount as a guarantee that they will appear for all their court hearings and appointments. After they make all their necessary court appearances, their money will be returned to them. If they do not show up, the government will confiscate the amount. If a defendant cannot afford bail, their families can work through a bail bondsman who posts the full amount while the families pay a nonrefundable fee. This nonrefundable fee is known as a bond premium and is often 10-15 percent of the bail amount. The rest of the amount is collateral — such as a car — until the defendant finishes all their court appearances. If the defendant misses a court appearance, the bail bond company will recoup the collateral.
The current cash bail system has numerous criticisms leveled against it. First, those against a cash bail system say that it violates equal protection under the 14th Amendment. The 14th Amendment states, “No State shall make or enforce any law which shall abridge the privileges or immunities of citizens of the United States; nor shall any State deprive any person of life, liberty, or property, without due process of law; nor deny to any person within its jurisdiction the equal protection of the laws.” As cash bails are meant to be expensive to prevent defendants from fleeing, a cash bail system favors the rich. Citizens are not treated equally under the law if some, with wealthy backgrounds, can post bail and get out of jail, while the less fortunate others must wither in jail. The California Courts say that bail is meant to be a non-restrictive approach to assure appearance while maintaining a presumption of innocence. But often, defendants are not treated this way.
Some may have the perception that every defendant who has a cash bail set for them must be a threat to society — why else would a judge order bail? But the cash bail system is applied to numerous types of crime, not just violent offenses. Even for non-violent, minor crimes, people in California can face high bail fees. For example, in Alameda County, someone who violates traffic school can be arrested and have their bail set at more than $1,000. The price for selling fake CDs? It starts at $12,370. These numbers come from the bail schedule created by the county, but judges can set bail at their discretion. California needs to take a serious look at what would be effective strategies in public safety. What cash bail shows is how the judicial system punishes poor defendants.
Families are not the people that California should be punishing. And yet those are the ones who are punished when their loved ones are jailed and they cannot afford bail.
The California State Senator Robert Hertzberg, who introduced the bill said, “The goal is to create a system where freedom isn’t based on an individual’s ability to pay or put money into the pockets of “predatory lenders”.
Cash bail also disproportionately affects Black and Brown communities, who are also more likely to be jailed before trial. Young Black men are about 50 percent more likely to be detained pretrial than white defendants. An NYU study on racial disparities in bail sentencing found that Black defendants with a similar criminal history to White defendants will face higher bail amounts for the same charges. Latino defendants also faced similar discrimination. The study notes that this is due to judges having great legal discretion yet limited information about the defendant. This leads to judges using heuristics, based on racial stereotypes and biases, to make decisions.
It seems that ending the cash bail would be the best system for California, and it is not an unprecedented choice. In states that have enacted cash bail reform, crime has not dramatically increased but it has affected the amount of incarcerated individuals. An example is New Jersey: “’While getting rid of bail doesn’t necessarily impact crime, it does affect the number of people who end up with criminal records’, Horn said, ‘since innocent people who can’t afford bail have been known to take a plea just to get out of jail.'” To slow crime, reducing the number of people who end up with criminal records due to the fact that they cannot post bail or continue to wait in jail would help. These people will have a much better chance of keeping a job and their families intact if they do not have a criminal record. As previously stated, those who committed a violent crime will not be released by the Courts. The people who would not have criminal records would be low-risk defendants who showed up to their hearings and found not guilty or had their case dismissed.
Washington D.C. also has not had cash bail since the 1990s. “Last year, we released 94 percent of all the people that we arrested without using money. Eighty-eight percent made every single court appearance, and 86 percent were never arrested for any criminal offense of any kind. And of the very small percentage of people that were arrested in D.C. that we released, less than 2 percent were rearrested for a crime of violence.” Should California follow the lead of other states who have enacted cash bail reform and pass Proposition 25?
If Proposition 25 passes, SB10 creates a new department in California courts called Pretrial Assessment Services. This risk assessment would take into consideration the crime committed, the risk of failure to appear, and the location where the defendant was arrested. Low-risk defendants would be released and high-risk defendants would not be released. The medium risk would be released or detained, depending on the county. Under the current system, those who are detained under suspicion of committing acts of violence or sexual assault are not allowed bail. This would continue with the new risk-assessment system. The argument that violent felons would be released and threaten public safety is unfounded as well.
Cash bail also creates an unnecessary strain on the jail system, which is overcrowded and slow-moving. The defendant is still innocent as they have not been proved guilty yet, and instead, they have to be jailed for weeks because of limited economic means. By keeping people out of pretrial detention, California could potentially save millions of taxpayer dollars each year. Currently, two-thirds of the California jail population have not received a sentence. This population includes those who are eligible for release but have not because they cannot post bail, as well as those not eligible for release. If there could be a way to release defendants of non-violent crimes earlier, California could reduce its jailed population. However, it depends on if it could reduce the number of people detained for pretrial risk factors.
Would SB10 reduce the number of people in pretrial detention? SB10 would create a pretrial division to judge risk, but this could be an additional roadblock that would slow court processes by having another place accused have to stop by. If it takes many years for a case to reach trial, how long will it take for a defendant to be heard by risk assessment? Another criticism of SB10 is that it gives judges the ability to jail defendants without a clear reason. “With the old system, judges set high bail knowing it will keep people locked up; with Proposition 25 they can just order someone locked up without even setting an amount,” said John Raphling, senior researcher on the criminal legal system for Human Rights Watch. The huge issue is that the proposed risk assessment system does not give a clear definition of detention. If judges can use pretrial assessment to continue to jail numerous defendants without a clear avenue for release, California fails to solve anything.
The glaring concern with SB10, or a Yes vote on Prop 25, is that it leaves too much room for inconsistencies. For example, the risk assessment for someone deemed “medium risk” differs from county to county. This means that someone who is arrested in Compton would have a different risk assessment than someone who is arrested in Pasadena. The 14th Amendment protects people’s rights to equal protection under the law and to have the right to a fair trial. As pretrial risk assessment systems differ from county to county, this is not a consistent treatment for all Californians. This new system would likely operate on socioeconomic lines again, so this referendum does not solve the problem of treating all Californians alike (the main critique of cash bail). Also, the fact that the Risk Assessment Department and judges can adjust to their discretion means that there is room for these systems to exercise bias. It has been shown that racial bias is extremely harmful in the judicial process in pretrial detention. Black defendants are more likely to be charged with monetary bail than White defendants, and the amount is likely to be greater as well. SB10 does not give a clear way it would address this mismatch of justice. SB10 would continue to give space for judicial bias disguised as judicial discretion.
Concern for inconsistent treatment exists in the current system; it is not a problem of cash bail or risk assessment, but rather a larger institutional issue. Risk assessment does not solve how arbitrary judicial hunches can be. While it is fair to criticize how SB10 does not outline how counties remain consistent, the bail set for you today already depends on the judge that hears your case and the color of your skin. The county you are arrested by police in also has differing bail schedules.
In conclusion, SB10 fails to address some of the most salient issues of cash bail — the inconsistent rulings and racial divide in our judicial system. Abolishing cash bail will increase the equal treatment of the rich and poor, but not erase racial bias within the risk-assessment process. Still, it is important to recognize how the cash bail system extorts people and the benefit of replacing it. California should continue to have these difficult conversations about reforming criminal justice. While SB10 is not the answer to creating a more just legal system, it is a step in the right direction.