On August 28th of last year, Governor Jerry Brown signed SB10, better known as the bail reform bill, into law. Originally scheduled to go into effect in October 2019, the new law promises to transform conditions of pretrial release and is already being used in test programs in several counties. For example, Napa County has a similar system in place and has reported a lower rate of recidivism.

Under current law, those facing misdemeanor charges are usually released on their own recognizance and that is not expected to change. People facing felony charges are currently released after posting a monetary bail amount. That amount is set by the judges of each county and can vary dramatically by location and the specifics of the crime. In 2017, Riverside County Superior Court assigned bail in 10,000 cases with base amounts ranging from 500 to one million dollars.

The new law would require courts to establish a new department known as “Pretrial Assessment Services” (PAS) which would be responsible for determining the level of risk posed by each defendant. The results of that assessment would then be reported to the court along with recommendations for conditions of release. This new department could consist of court employees or be contracted through a local public agency. Monetary conditions of release will be prohibited. Non-monetary conditions of release under the new law may include ankle monitors or required check-ins.

The law prohibits PAS from releasing those who meet specified conditions and allows a prosecutor to file a motion seeking detention pending trial. In these cases, the court is required to conduct a detention review before a judge and appoint a public defender if applicable. The victim of a crime must be given notice of this hearing and have a chance to voice their opinion about the defendant’s custody status.

Currently, bail is usually paid by a bail bonds company after receiving a non-refundable fee of 10%. Not surprisingly, the bail bond industry is fiercely opposed to the new law. David Quintana, a lobbyist for the California Bail Agents Association stated, “[y]ou don’t eliminate an industry and expect those people to go down quietly. Every single weapon in our arsenal will be fired.” A main argument by those in the bail industry is that cash bail and the threat of a bondsman tracking you down is a powerful motivator to appear in court.

It is due to the concerted efforts of the bail industry and their quickly organized signature campaign, “Californians Against the Reckless Bail Scheme,” that this law will not take effect in October as originally planned. Instead it has been put on hold and will appear on the November 2020 ballot. Until then, no changes to pre-trial release will be made at the state level and the bail industry is confident they will secure a full defeat of the law at the next election.

ACLU and Human Rights Watch have supported an end to the bail system, calling it “antithetical to our values of justice, fairness, and racial equity” but they have also voiced reservations about changes to the law which they felt gave too much discretion to individual judges and could produce biased outcomes. Riverside County State Senator Jeff Stone also warns that the law will actually result in more jail time for many defendants as elected judges will be reluctant to release anyone who could possibly pose a danger.

For now, it seems likely that at least some changes will be made to the details of the law before the next election and we do not yet know what system voters will choose. Currently, two-thirds of those in California jails are awaiting trial. By allowing their release, the defendants would be able to keep their jobs, maintain child custody, assist in their defense and possibly enter substance abuse treatment. Ideally, this would give defendants the means to resolve their legal issues as paying even 10% of a set bail amount may be financially devastating or completely impossible for defendants of limited means. However, the financial implications at the state level to any changes in the current system remain to be seen.

– Laura