California became the first state in the United States to eliminate cash bail on Tuesday, taking what seems like a historic step toward more equitable pretrial conditions, according to the New York Times.
“Today, California reforms its bail system so that rich and poor alike are treated fairly,” said Governor Jerry Brown in a statement after signing Senate Bill 10 (SB 10) into law, which goes into effect in 2019.
SB 10 ensures that people who can’t afford bail will no longer be forced into detention because of their poverty and abolishes the profit-driven bail industry.
“This is a transformative day for our justice system,” Tani Cantil-Sakauye, chief justice of California, said in the statement. “Our old system of money bail was outdated, unsafe, and unfair.”
Criminal justice reform advocates, however, argue that SB 10 was amended in ways that undermine its initial goals of curbing the excesses of incarceration. Instead of cash bail, California will detain people accused of crimes based on a risk assessment tool that critics say is ripe for abuse.
“There were two important goals aside from just ending money bail when we were pushing for SB 10,” Jessica Farris, director of criminal justice and policy/advocacy counsel for the ACLU of Southern California, told Global Citizen. “To dramatically reduce the number of Californians who are trapped in jails who are merely accused of, not convicted of, breaking the law, and fight against racial biases and disparities that are deeply rooted in the legal system.”
Through the cash bail model, California holds around 48,000 people in pretrial detention, two-thirds of the state’s overall prison population. Jailing a person pretrial has myriad consequences. It can cause a person to lose custody of their kids, a job, an apartment or home, medical care, college classes, welfare benefits, and more. It can deepen a person’s poverty and make them even more likely to commit a crime in the future.
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SB 10 does not directly address these effects. It replaces cash bail with a system that assesses the risk potential of the person accused to determine if they should be detained, according to criminal justice reform advocates.
As a result, just as many or even more people could be detained going forward, except now there won’t be any mechanism for release.
“The bill trades in the exploitative money bail system for a new pretrial detention regime that keeps people locked up through the use of unregulated risk assessments controlled by law enforcement and expansive, unchecked, judicial mechanisms,” Silicon Valley De-Bug, a community organizing and advocacy platform, said in an article explaining its rejection of SB 10.
“It is a legislative bait and switch,” the group wrote. “We would argue that real progress does not create a false choice between ending money bail or expanded tools of detention — but instead eliminates both apparatus of pretrial incarceration.”
#SB10 is not a win, folks. The CA leg replaced a terrible system w/ one that may lead to many more people trapped in jails when they're merely accused of breaking the law & one that relies too heavily on risk assessment tools that will perpetuate & entrench racial bias. https://t.co/Nj82IadWSJ— Infinite Jess (@jessraefarris) August 29, 2018
The new system of risk assessment is from Pretrial Assessment Services (PAS), which is already in operation in parts of the state, according to the Times.
The PAS model sorts defendants into three broad categories: “low risk,” “medium risk,” and “high risk.” Each county will determine the parameters for each risk level through local judicial boards.
How the PAS tool arrives at individual risk assessments will not be made public, and overall data will not be broken down for future analysis to check for racial and other biases.
This lack of oversight could lead to an even more aggressive incarceral system, advocates argue.
A defendant’s detention is recommended “if there is a substantial likelihood that no condition or combination of conditions of pretrial supervision will reasonably assure public safety or the appearance of the person in court.”
Once a person is arraigned, prosecutors and then a judge will assess risk factors such as a person’s arrest records, past court appearances, probation status, and much more.
Many of these factors, however, could perpetuate existing racial biases in the system. For example, a black person living in a heavily policed area could be arrested for an offense that would not be considered criminal in another part of the state and then be denied detention in the future because of this arrest record.
Further, it could lead to hard-to-break cycles of recidivism and over-incarceration. For example, if a person arrested for loitering has a felony robbery charge on their record from several years ago, they could be held in pretrial detention, derailing their life for what would normally be considered a minor offense.
Many low-risk defendants will be released before trial, and high-risk defendants, such as those convicted of murder, will be automatically detained.
Medium-risk defendants and an unknown percentage of low-risk defendants, meanwhile, will have their fate determined at the discretion of the judge. In this way, the new model doesn’t differ much from the old model.
The discretionary power given to judges is too broad, according to advocates, and could lead to a majority of people arrested being detained with no mechanisms for release.
“In a sad twist after years of work, this bill as amended in the final days subjects nearly everyone arrested to a new system of expanded pretrial incarceration and preventative detention,” the California-based criminal justice reform group Essie Justice wrote in a statement. “People who could get out and go home today pretrial, albeit at great cost to a bail bondsman, would have to stay incarcerated the moment this bill goes into effect.”
Without safeguards in place, the new statewide system of risk assessment could worsen racial disparities and other abuses of bias, according to the ACLU.
Farris, of the ACLU, said that an improved SB 10 would greatly narrow the circumstances that lead to pretrial detention. Next, risk assessment tools would have to be accompanied by oversight panels and administered by independent bodies. Third, arraignment and detention periods would have to involve practices that help people get legal access, mental health services, substance abuse services, and more.
Only when the system takes a holistic approach and is based on a presumption of innocence, rather than guilt, will the excesses of the criminal justice system be addressed.
“Ideally there would not be an emphasis on detention,” Farris said. “In our system of justice, liberty is supposed to be the norm.”
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