Bills to Set Bail at $0 in California Pass Initial Hurdles

Lawmakers taking a dual approach to bail reform saw their bills pass key committees in the Senate and Assembly on Tuesday

The California Capitol building.

SACRAMENTO, Calif. (CN) — A pair of bills that would restructure California’s criminal justice system by setting bail at $0 for a wide range of criminal charges sailed out of their respective state legislative committees on Tuesday.

Senate Bill 262 and Assembly Bill 329 will set bail at $0 for misdemeanors and “low-level felonies,” and require that bail money be refunded if an arrestee makes all their court appearances, their charges are dropped or their case is dismissed. They also ensure that the accused does not have to pay any costs related to their pre-trial release.

The bills are modeled after the Judicial Council’s decision to set bail at $0 last April, a move intended to keep local jail populations low to mitigate outbreaks of Covid-19. The emergency rule was rescinded in June.

Last November, California voters rejected a measure that would have enacted Senate Bill 10, a law that abolished cash bail in favor of computer-based “risk assessment” models. Under the risk assessment models, judges would decide whether and under what conditions pretrial detainees can be safely released to await trial. 

Risk assessments essentially create a profile of an individual based on a set of static data points. Opponents assailed the technology as inherently biased against the young, the poor and people of color. 

“This measure is not SB 10, period. End of issue,” state Senator Bob Hertzberg said Tuesday. 

Hertzberg, a Democrat from Los Angeles who co-wrote SB 10 with Assemblymember Rob Bonta, D-Alameda and state Senator Nancy Skinner, D-Berkeley, said the initiative’s failure at the ballot box was not a sign that voters support bail, but a repudiation of lawmakers’ approach to getting rid of it.

“The arguments that got voters’ attention all had to do with the issue of an algorithm. It didn’t go to justice and correcting the system,” he said.

Presenting AB 329 to the Assembly Public Safety committee Tuesday afternoon, Bonta distinguished it from SB 10.

“This is building off something we had in place during the pandemic,” he said. “The bill reforms money bail not by eliminating it, but by setting it at $0 for all misdemeanors and low level felonies. It also orders the Judicial Council create a uniform bail schedule with standard bail amounts statewide so there would be certainty and consistency throughout all our counties.”

Bonta noted that 31 counties still have $0 bail in place, and that crime rates have remained largely steady. Judges will have the discretion under AB 329 and SB 262 to detain an arrestee pre-trial “when absolutely necessary.” 

The bills are opposed by the bail industry, the California District Attorneys Association and Crime Victims United, whose executive director Nina Salarno Besselman said she feared that they will stifle victims’ voices at detention hearings, particularly those who have suffered abuse from violent partners.

Besselman said the time between detention and trial is often the most dangerous period for victims trying to escape their abusers. “Being able to be heard before the release is critical to public safety,” she said. “I agree the bail schedule needs to be addressed and that people don’t need to be incarcerated because they don’t have the monetary means, but that doesn’t mean that we should just let them out without consideration of the victims safety.”

Larry Morse with the California District Attorneys Association also testified in opposition Tuesday, saying the bills do not adequately address threats to public safety. He cited a litany of crimes that are considered low-level enough to warrant $0 bail: hate crimes, elder and child abuse, witness intimidation and felony possession of an assault weapon to name a few.

Both Morse and Besselman said they preferred Assembly Bill 38, another bail reform bill introduced by Assemblymember Jim Cooper, D-Elk Grove, that would likewise require the Judicial Council to set a uniform statewide bail schedule. It also gives judges more latitude to require bail for arrestees booked or charged for two or more offenses. It requires judges to impose the highest amount of bail on those who are charged with two or more offenses if those offenses were committed against separate victims or on separate dates, or if the offenses involved multiple sex acts committed on the same victim.

Cooper’s bill, Besselman said, “is more vetted and more thought out in the realm of public safety.”

Assemblymember Bill Quirk, a Democrat from Hayward and member of the assembly’s public safety committee, said he would vote to advance AB 329, but added, “I do think it needs some work.”

Quirk said instead of setting bail at $0, he would prefer lower bail amounts statewide. Average bail is currently set at $50,000.

“I’d be in favor of just bringing everything down to 90%,” he said.

AB 329 passed out of the committee by a vote of 5-2, while SB 262 passed 4-1. 

Both bills are headed to appropriations, but their futures will likely be determined by the California Supreme Court, which is set to rule in a case that will change the way bail is set in California. 

“No matter what our opinion is, that’s going to control the decision,” Hertzberg said.

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