(CN) – Facing an existential threat to their industry, bail agents are fighting back with a double-edged attack on a law that abolishes bail in California.
California Supreme Court Chief Justice Tani Cantil-Sakauye called it a “transformative day for our justice system” when Gov. Jerry Brown signed Senate Bill 10, the law that replaces bail with a system based on risk assessments that gives judges broader discretion over release. But the bill now faces both a referendum to repeal and a ballot initiative to grant bail constitutional protection.
The initiative, filed quietly last month, would amend the California Constitution to shield the right to bail through a bail bonds agent from legislation like SB 10. The Bail Reform Act would ensure “the right to obtain release at all times before trial by posting bail.”
The California Constitution already prohibits excessive bail, but the Bail Reform Act seeks to define it specifically. “Bail in excess of the amount reasonably necessary to ensure the personal appearance of the person charged with a crime to appear in court when his or her attendance is lawfully required, is excessive,” the initiative reads.
Sacramento lawyer Tom Hiltachk, who filed the initiative and sought the referendum on behalf of the bail industry, did not respond to calls seeking comment.
“It seems to me it’s a little desperate,” said Sen. Robert Hertzberg, a Democratic lawmaker who helped write SB 10 and has championed the anti-bail movement in California. He says he finds it odd that the state constitution would be amended to protect an industry.
“It’s the weirdest thing. All of a sudden they care about the liberty of people?” he said. “They care about making money. I don’t have a problem with making money, but do it honestly. One of the dark sides of being in public service is these advocates so often never care about the public good, they care about preserving their interests.”
For Hertzberg, the initiative is a last-ditch effort, like throwing everything against the wall to see what sticks.
“Do they want to repeal SB 10 or do they want bail in the Constitution?” he said, adding that for voters “it will be confusing”
Under SB 10, those charged with nonviolent, “low-level” misdemeanors could be released within as little as 12 hours after being booked into jail, and charges of stalking or domestic violence are exempt. Those arrested for felonies will be immediately assessed for their risk to public safety and likelihood of returning to court.
Although SB 10 does away with a system that many social justice groups decried as unfairly punitive towards the poor, it was also seen as replacing one flawed framework for another. Critics have assailed algorithms and actuarial methods that assess a person’s threat to public safety as racially biased, and say they may lead to more people being incarcerated than before. Others are uncomfortable with judges being given even broader discretion to determine risk.
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