Analysis

Bail reform bill sent to governor

A jail inmate in handcuffs awaits word on his case. (Photo: sakhorn, via Shutterstock)

(UPDATE: A landmark bill to eliminate bail for some offenses was approved by the Senate and sent to Gov. Brown’s desk.)

On any given day, thousands of jailed people are awaiting trial, sentencing or hearings in any of California’s 58 counties. Many are in custody because they cannot afford to post bail.

Legislation to allow people to be free while their case is in the Legislature and its fate will be decided by midnight Aug. 31 when lawmakers adjourn.

It’s a system that punishes people, that takes away their liberty, that treats them differently because they have less money in their pocket.” — Bob Hertzberg

The California Money Bail Reform Act was introduced in the form of two identical bills authored by Democrats — Senate Bill 10 by Sen. Robert Hertzberg of Van Nuys, and Assembly Bill 42 by Assemblyman Rob Bonta, D-Oakland. Bonta’s bill was defeated earlier, leaving Hertzberg’s measure as the principal legislation. The bill has gone through a series of amendments, most recently last week.

“It will end money bail in California. Period. Hard stop. End of story,” Bonta told reporters. “It will replace a flawed, inequitable, money-based system … and fix a system that is based on the size of his or her risk, not on the size of his or her wallet.”

Hertzberg’s SB 10 seeks to reduce the pretrial jail population by having the counties follow a procedure called “individualized risk assessment” to determine whether people awaiting trial or sentencing should be released pending their court appearance, or whether they should be required to post a cash payment to make sure they show up.

The assessment, which Hertzberg says factors in such things as public safety and flight risks, is also intended to prevent wealthy, violent offenders from paying bail and being released prior to arraignment.

Currently, “it’s a system that punishes people, that takes away their liberty, that treats them differently because they have less money in their pocket,” Hertzberg said.

“Our arraignment courts — already the busiest courts in the entire judicial system — would become completely clogged with bail hearings.” — Alliance of California Judges

A number of organizations have come out against the bill.

The Alliance of California Judges, a group of more than 500 judges, wrote earlier SB 10 “would radically alter the current bail system,” cautioning that the bill would heighten a risk to public safety and congest courts despite what the wording says.

“Those arrested for selling drugs, committing identity theft, vandalizing homes and businesses, stealing huge sums of money, or burglarizing dozens of businesses would all presumptively be granted pretrial release — without having to appear before a judge,” the group wrote in a letter to Bonta. “Our arraignment courts — already the busiest courts in the entire judicial system — would become completely clogged with bail hearings.”

Marc Klaas, president of the KlaasKids Foundation, which was established after the kidnap and murder of his daughter Polly, is against the bill as well.

Polly was 12 in 1993 when career criminal Richard Allen Davis pulled her from her Petaluma home at knifepoint, becoming the catalyst for California’s three-strikes law after he admitted to killing her.

In an opinion piece published by The Sacramento Bee earlier this year, Klaas compared SB 10 to “an out of control chainsaw (sic) approach that disregards public safety. … SB 10 is based upon the pretrial risk-based assessment programs adopted by New Mexico and New Jersey,” Klaas wrote, saying that in New Mexico violent and property crimes were on the rise. “[I]n New Jersey, bail reform is financially unsustainable and administratively challenging. Things are so bad that bipartisan efforts in both states are now trying to repeal the damage their poor choices have caused.”

Not surprisingly, the bail bonds industry is opposed to the Hertzberg bill. Ventura-based bail bond company101 Bail Bonds posted on its website in opposition to the bills, “The bail bonds industry has made posting bail affordable for even the lowest-income individuals who find themselves arrested and facing criminal charges, and done so at zero cost to taxpayers in our state and across the country.”

“I ask, ‘What do I need to put in place so this person appears in court?’ during each client meeting.” — Greg Padilla

Greg “Topo” Padilla, bail bondsman, president of Golden State Bail Agents Association and board member of the Professional Bail Agents of the United States, also expressed concerns about the bill.

Padilla sat in his I Street office in Sacramento recently, flipping through client folders, explaining the general public believes minorities and lower-income people are targeted for arrest.

“They aren’t arrested as much as you would think,” Padilla said. “And SB 10 is being pushed by groups that have not thought about the unintended consequences,” he added.

Under SB 10, Padilla said those arrested will be released from prison after they “promise to appear” in court under the supervision of an authorized person.

“The odds of that person making it to court are low,” Padilla said.

He also believes the algorithms used to replace bail don’t go as in depth as bondsman reporting goes and don’t achieve, what he believes, is the “soul job” of a bondsman.

“I ask, ‘What do I need to put in place so this person appears in court?’ during each client meeting,” he said, referencing that he often works with families of those arrested to ensure they arrive in court, and if they flee, his team can find them.

“What is a computer going to assess? They are more than just a name, they’re human beings,” Padilla said.

Padilla does agree with Hertzberg in one area—fixing the state’s bail schedule. A portion of SB 10 would require the judge or magistrate to set monetary bail “at the least restrictive level necessary.” The median bail in the state is about $50,000, five times the national average.

Kentucky has eliminated traditional bail and releases about 70 percent of its defendants before trial without money nail. Santa Clara County has a successful pretrial program that has helped more than 95 percent of those released make all scheduled court appearances.

Hertzberg said excessive bail is keeping people in jail and ruining their lives, costing them their homes, jobs and cars, and eventually forcing them to agree to a charge to get out of jail for time served.

“SB 10 would reform California’s money bail system and replace the current pretrial process that often forces people of modest means accused of minor crimes to remain in jail until a court can determine their innocence or guilt while the wealthy go free,” he said.

Ed’s Note: Updates earlier with Assembly approval.


  • Bail Insights

    It is unbelievable to me how uneducated Senator Hertzberg and Assemblyman Bonta are about the bail industry and California’s criminal justice system. They are pushing a bill to solve a problem that does not exist. California jails are not crowded because of poor people being stuck. Thanks to AB109, Prop 47 and Prop 57 California’s jail populations have been altered. Historically 70%+ of people in jails were there in pretrial status…which makes sense because that is what the county jails are designed for…pretrial detainees. Today, that number is under 40%. That means that the majority of the people being held in jail have already been convicted of a crime. AB109 moved those folks into county jails so as to reduce our prison populations. In terms of low level offenders sitting in jail…that is also a myth. Thanks to Prop 47, and the lack of space for pretrial detainees in county jails, very few if any low level misdemeanor defendants are ever held in jail. They are all ORd for FREE. 90% of the defendants in the LA county jail who are there in pretrial status are there on FELONY charges. That leaves less then 2% of people in the LA county jail that are there on a low level misdemeanor. Now if you remove those that are there on a hold of some kind and who aren’t eligible for bail, that number gets even smaller. If you take the people who do bail out, that number is even smaller. The reality is that SB10 turns our entire criminal justice system upside down and focuses on the plight of the accused criminal as opposed to the needs of the victim. California already has pretrial services. If there is someone in jail who is not abel to bail because they are indigent, that person should be working with pretrial. It is NOT the bail industry that is to blame for this person. It is a failing ineffective pretrial program. It is time to stop this insanity of eliminating bail and instead put some focus on education and teaching our youth to not commit crimes in the first place. That would be true reform.

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