SAN FRANCISCO (CN) – Calling the state’s cash bail system unsafe and unfair, California Supreme Court Chief Justice Tani Cantil-Sakauye released a report Tuesday she hopes will help shape the future of pretrial detention in California.
“I support the conclusion that California’s current pretrial system unnecessarily compromises victim and public safety and agree with the recommendation to replace our current system of money bail with one based on a defendant’s risk to the public,” the chief justice said in a statement. “This report should serve as a framework as we work with the governor and the Legislature to address these issues that are central to our values and responsibilities of providing fair and equal access to justice for all Californians.”
The report on California’s bail system is the work of a head clerk and 11 judges from trial courts up and down the state, who recommended courts begin to use assessment tools to determine whether a defendant is a flight risk or a threat to public safety instead hitting them with a money bond which they say could let a potentially dangerous defendant buy his freedom.
National pretrial trends show 61 percent of the country’s inmates have not been convicted – and 64 percent of California’s inmates are awaiting arraignment, trial or sentencing, according to the report.
“A pretrial system that relies exclusively on the financial resources of the accused is inherently unsafe and unfair,” the judges wrote. “The primary goals of an effective pretrial release structure are to maintain public safety and to ensure that defendants appear in court while treating people fairly. However, use of a monetary bail system compromises public safety because release is not premised on the risk posed by a defendant.
“Rather, use of monetary bail secures the release of the accused without consideration of whether that release poses a danger to the community – thereby allowing potentially dangerous defendants to purchase their release.”
They added, “Once a bond is purchased and posted with the court, few if any conditions of release are imposed on a defendant, who has little to no accountability to the court for pretrial behavior. At the same time, many defendants with limited resources remain in jail because they cannot post bail. In posting bail to gain pretrial release, individuals and their families are often unnecessarily saddled with significant long-term debt regardless of the outcome of the case.”
A risk-assessment tool weighs factors in pretrial detainees’ background, including the current charge(s), prior convictions and a history of failure to appear in court, and then assigns the defendant a risk level based on those factors.
Additionally, the judges think every court in the state should have pretrial services staff to supervise released defendants and gather information about new arrestees to help judges determine their restrictions. Judges should also consider victims’ rights when determining conditions for release, and issue protective orders or exclusion zones when appropriate.
“Thousands of Californians who pose no risk to the public are held in jail before trial, while others charged with serious or violent offenses may pose a high risk and can buy their freedom simply by bailing out,” Ventura County Judge Brian Back, the work group’s chairman, said in a statement. “We think our recommendations, if followed, will help keep Californians safer and preserve scarce jail resources while providing new tools to monitor those released before trial.”
The report cites several court cases in California and throughout the nation challenging money bail. Since 2015, it says, there have been 12 federal civil rights lawsuits in nine different states.
Phil Telfeyan, executive director of Equal Justice Under Law, is the lead attorney in Buffin v. San Francisco, a federal class action claiming the cash-bail system unconstitutionally criminalizes poverty. In an email, Telfeyan hailed the report, but said he had some concerns about the potential for discrimination in a risk assessment.
“The current system amounts to wealth-based detention, and the working group’s recommendations are an important step in ending pretrial poverty jailing,” he wrote. “I caution that, while the working group recommends ‘risk-based assessment,’ computerized risk-assessment programs have the potential to discriminate against racial and ethnic minorities. Computerized risk-assessment programs can also overestimate someone’s level of ‘risk’ before they have been convicted of any crime. It is critical that, at all stages, we ensure that each individual’s right to pretrial freedom is maximized.”
He added, “No person should spend even one day in jail simply because he or she is poor. Equal Justice Under Law is fighting hard to bring this discriminatory system to an end by bringing legal challenges across the country to end this unconstitutional practice, which creates two separate systems of justice: one for the rich and one for everyone else.”
Telfeyan said he expects a ruling in the Buffin case by the end of the year.
The report also brought a strong reaction from members of the California Legislature, who responded triumphantly to the judges’ findings. State Sen. Bob Hertzberg, D-Van Nuys, who has worked for two years to end money bail in California, said in an interview Tuesday he felt vindicated after reading the report.
“I’m over the moon. I’ve been in this fight every day for two years and everything the other side told me has been debunked by this recommendation from the working group. It’s just fantastic,” he said.
The support of California’s trial courts is crucial to ending the money bail system, as its judges will be the ones evaluating pretrial detainees.
“They see how hard it is and they see the injustice and they really have done the homework on the statistics,” Hertzberg said of the work group. “To have the courts, which are right on the front lines everyday having to make these decisions, it just doesn’t get any better than that.”
Hertzberg is the author of Senate Bill 10, which he said mirrors the findings in the judges’ report. The bill passed out of the state senate and the assembly’s public safety committee, but was held up in appropriations. Hertzberg said he wasn’t sure it had enough votes to make it out of the full assembly, so he and Assemblyman Rob Bonta, D-Oakland and the bill’s co-author, decided to put it on hold until next year.
“The argument being made against us was ‘Wait for the report.’ Well, we did and it says exactly what we’ve been saying,” Hertzberg said. “The bottom line is this report will help inform the discussion when meeting with the courts.”
Assemblyman David Chiu, D-San Francisco, who also helped write SB 10, said in an email: “As a co-author of bail reform in the legislature, I’m thrilled that the chief justice is committed to bail reform, to replacing our money bail system with a risk-based assessment program. By basing bail on a person’s income and not on the likelihood of future criminal behavior, our current bail system is both unfair and compromises public safety.”
Hertzberg says with the backing of the report and the chief justice’s commitment to bail reform, he feels confident that SB 10 will pass both houses. Gov. Jerry Brown has also voiced his desire to put an end to cash bail, and issued a joint statement in August with Cantil-Sakauye that said: “I believe that inequities exist in California’s bail system and I look forward to working this fall on ways to reform the system in a cost-effective and fair manner, considering public safety as well as the rights of the accused.”
The cost of implementing a new framework of rules remains a concern, and the judges recommended “adequate funding and resources” for the courts for reform to be successful.
“Significant initial investment of resources and ongoing funding are essential,” the judges wrote. “If this system relies on anticipated savings to cover new and continuing costs, it is likely to fail before the public gains any benefits. Without adequate and consistent funding the system cannot be effective, which may result in a rise in the number of accused who fail to appear in court and an increased risk to public safety.”
Hertzberg agreed that money will be an issue, but the cost will be far less than keeping arrestees in jail.
“We are going to advocate that they get the resources they need,” he said. “You’ve got to look at both sides of the balance sheet. Sixty-three percent of people in jail are pretrial detainees, and that’s going to reduce costs.
“There’s no question the court needs proper funding to do this, but on the flip side, what are you achieving?” he added. “The chief justice said the system is ‘unsafe and unfair.’ How do you argue with that?”