California Judicial Council Lays Groundwork for Bail Reform

SAN FRANCISCO (CN) – California ushered in a new era for criminal justice in August when Governor Jerry Brown signed into law a bill that eliminates money bail as a way of keeping pretrial defendants being bars. On Friday, the Judicial Council met to hash out how the courts will actually put it into practice.

Judicial Council staff director Martin Hoshino said the bill’s name, the California Bail Reform Act, is a bit of a misnomer.

“In one significant respect this version is really not bail reform per se. By eliminating money completely, it is a justice reform that corrects the social, economic and financial inequalities in our state. It’s a plain and simple social change and correction that is long overdue,” he said.

He also addressed the law’s critics, who have argued both it goes too far and not enough.

“The bail industry claims that too many dangerous people will be released. Some reformers suggest that too many people will be detained,” Hoshino said. “The truth is the bail bill cannot do both, and it actually does neither. What it does is corrects known inequities by treating people equally in a safe and fair manner. No matter how much money you have, whether you are rich or poor, if you are arrested in the state of California for a crime you will be treated the same.”

The foundation for SB 10, two years in the making, was a lengthy report put out last year by the Pretrial Detention Work Group. The group, consisting of a head clerk and 11 judges from trial courts up and down the state, suggested courts begin to use assessment tools to determine whether a defendant is a flight risk or a threat to public safety.

Retired Judge Brian Back of Ventura was one group’s co-chairs, along with Judge Lisa Rodriguez of San Diego.

The new law takes money out of the equation for pretrial detainees. As soon as someone is arrested on a misdemeanor, he or she will be released on his or her own recognizance unless the crime falls under one of 10 exceptions, like domestic violence or stalking.

Those arrested for felonies will be immediately assessed for their risk to public safety and their likelihood of returning to court.

Retired Judge Richard Couzens of Placer County explained the law zeros in primarily on the first 48 to 72 hours after someone is arrested.

“The decision to detain or not detain will be based on assessment of risk, not money,” Couzens said. “Low-risk offenders won’t be retained in custody simply because they cannot afford bail, but high-risk offenders won’t get out of jail because they can post bail.”

Each county will have to adopt its own local rule for evaluating its medium-risk felony detainees to determine who can be released.

“A certain base will be provided by the statute, but the county has certain discretion to make adjustments to detain most people. This is necessary to meet local culture,” Couzens said, adding that the council will write a rule in the coming months that will help advise the courts.

Some crimes are not considered eligible for release at all pre-arraignment, and all charges will be subject to review at arraignment.

“There is a presumption that people at arraignment will be released either on O.R. [own recognizance] or on supervised O.R. with conditions,” Couzens said. “The exception is if a DA files either at or after the arraignment a request for a preventive detention hearing.”

This will trigger the most rigorous review to determine whether the defendant should stay in jail pending trial. These hearings can be requested for any crime that involves violence or really any situation where it isn’t feasible to set release conditions that will keep the public safe or ensure the appearance of the defendant in court, Couzens said. But the defendant is entitled to a hearing, to be represented by counsel, and the judge may hear from both the defendant and the victim.

“It’s not much of a change for what judges do,” Couzens said, adding the biggest change is that now judges have better tools to make the decisions they make every day.

So who is going to pay for all of this? For now, the state has provided $15 million in funding for this year. Some of the money will go directly to the trial courts for their own costs and for pretrial services to conduct the initial risk assessments, and some will go directly to county probation departments who will be working with the courts on pretrial services.

One criticism of the law is it will detain more people in the state’s already bursting jails. Judge Lisa Rodriguez said the work group discussed this at length and believes that eventually, fewer people will remain locked up under the new system.

“A lot more people are ultimately going to get out under this. So the people who are in are the people who are the most serious, and are the ones we are most concerned about with public safety,” she said. “So initially there might be a slight uptick because you have the first three days with those medium and high-risk people. Ultimately, it’s going to balance out. We believe there will be less people in jail and they’ll be able to better manage their population so they can keep in those that judges think should be in.”

Hoshino added, “We were always using the money associated with the charge as a proxy for risk, which is not a good proxy. The system ought to be better off and it ought to be smarter from a population management perspective.”

Chief Justice Tani Cantil-Sakauye said there is a lot to do both before the law takes effect on Oct. 1, 2019, and in the years immediately after.

“The road ahead is long and windy. We have many responsibilities and requirements now. Not only for trial courts and our justice system partners, but for the Judicial Council. If you thought, what are we going to be doing for the next three years, now you know.”

Cantil-Sakauye said she will appoint an independent work group to handle all concerns about how the law is implemented. It will also keep a sharp eye out for implicit bias in the risk assessment tool – another concern from bail reform groups like the ACLU, which actually withdrew its support for the bill before its passage in the Legislature.

“It will be a clearinghouse where all issues, all stakeholders, are ideas come and are heard through this implementation work group that will report back to the Judicial Council about the progress being made and the action we need to take,” she said. “We are on the watch for the concern about implicit bias.”

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