Slow Motion on Bail Reform Nets California a ‘D’ on Pretrial Justice

(CN) – California’s sluggishness on bail reform has earned the state a failing grade in pretrial justice, according to a report released Wednesday by the nonprofit Pretrial Justice Institute.

California was among 13 states to score an abysmal grade of D. The report cites the Golden State’s pretrial detention rate, scant use of pretrial assessment tools and the persistence of money bail to ensure court appearances as contributing factors.

Detainees who have not yet been convicted currently make up 63 percent of the jail population in the United States, the report says. Of the 49 states the Pretrial Justice Institute analyzed, eight states – Arizona, Colorado, Connecticut, Kentucky, Nevada, Rhode Island, Utah and Virginia – received B grades, while Illinois, Maryland, Michigan, Minnesota, New York, Ohio, Oregon, South Dakota, Washington state and Wisconsin earned Cs.

Seventeen states received Fs, bringing the national average to a D.

“It is important to note that these scores are based upon current practice and do not reflect reforms initiated but not yet fully implemented,” the report says. “Several states have grades that do not reflect important initiatives that PJI expects, in time, will yield significant improvements.

The report comes as California’s judiciary released its own study of the issue last week, recommending an end to cash bail in favor of risk assessments that would allow many detainees to await their court dates at home.

In a statement, California Supreme Court Chief Justice Tani Cantil-Sakauye said, “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.”

Cantil-Sakauye has also thrown her support behind Senate Bill 10, legislation written by state Sen. Bob Hertzberg, D-Van Nuys, and Assemblyman Rob Bonta, D-Oakland, to eliminate money bail and replace it with a risk assessment program.

In a phone interview, Pretrial Justice Institute CEO Cherise Fanno Burdeen said California may have a long way to go to raise its score, but applauded the state’s judicial and legislative efforts.

“We’re really thrilled with the chief justice’s report. It’s in line with the Hertzberg-Bonta bill and it’s in the political atmosphere of California,” Burdeen said. “We hope that the understanding the grade California has gotten which is a reflection of the current status of things; it doesn’t take into account any hopes, dreams or pending legislation. It’s a simply way of getting the grade up.”

For the last six years, Burdeen’s organization has been pushing for changes to the bail system across the nation.

Burdeen said the goal of the report is to provide “context, comparison among states and a sense of urgency” on the issue, adding that as people have begun to realize the impact of mass incarceration and racial disparities within the criminal justice system, a strong pretrial services program has become a crucial – if overlooked – component of bail reform.

Bail Reform California, a coalition of organizations like the ACLU, the Service Employees International Union and the California Public Defenders Association, said in a statement Thursday that while California’s grade is unacceptable, the state is committed to improvement.

“Let us be clear: a D would be unacceptable in any number of subject areas but nowhere more so than when Californians’ freedom, livelihood and safety are at stake,” the group said. “This national report issued by the Pretrial Justice Institute presents yet another case for a fairer and safer bail system.

“If there is one ray of sunshine in the otherwise abysmal state of pretrial justice in California, it’s that the report cites California as a ‘state to watch’ given that all three branches of the state’s government have committed to moving forward to reform bail and improve pretrial services.”

So far, New Jersey is the only state that’s earned an A. In 2014, at the urging of Gov. Chris Christie, New Jersey passed legislation requiring the creation of pretrial services agencies to conduct pretrial assessments and make recommendations to judges. Money bail is used only as a last resort, according to the report.

“The new system has, so far, been phenomenal,” the report says, noting the number of people sitting in New Jersey jails awaiting trial fell by 15 percent in the first six months.

“Courts had begun detaining fewer individuals prior to the new laws coming into effect and the number unconvicted people held in jail dropped by more than a third (34.1 percent) between mid-2015 and mid-2017. At the same time, public safety was improved. Both violent crime and overall crime rates dropped statewide in the first nine months of 2017, compared to the same period in 2016,” the report says.

“Four years ago, New Jersey would have gotten an F,” Burdeen said. “Now it’s the only state that gets an A. Change is possible. They have functionally eliminated bail. Since Jan. 1, there is no one sitting in jail in New Jersey because they have bail they can’t afford. Everyone booked into jail has an assessment completed. Nearly 90 percent of people are released pending trial, by all accounts almost all are coming back to court and not getting re-arrested pending trial.”

Changes in California have been incremental. In Santa Clara County, the Board of Supervisors voted in 2016 to implement a program that gives nonviolent, low-risk and low-income detainees the opportunity for pretrial release. Burdeen said the goal is for “everywhere in California to look like Santa Clara.”

In 2015, the nonprofit legal group Equal Justice Under Law brought a federal class action against San Francisco, claiming it unconstitutionally criminalizes poverty by keeping poor arrestees in jail because they can’t afford to post bail.

A similar class action was also filed in Sacramento by 50-year-old Gary Welchen, a homeless man who was arrested for burglary this past January and held on a $10,000 bond.

Last week, Phil Telfeyan, executive director of Equal Justice Under Law and the lead attorney in the Buffin case, said he had some concerns about the risk-assessment tools being touted by groups like Pretrial Justice Institute.

“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,” Telfeyan said in an email.

Burdeen said she shares those concerns. “We support pretrial assessment tools that are research-based, validated and transparent,” she said. “No doubt the criminal justice system as a whole is racially biased, and people of color are more likely to get a money bond they can’t afford.”

She said the assessment tool cuts back on the number of factors a judge can consider when making a decision to release someone ahead of trial. Factors like home ownership, employment and the number of prior arrests are eliminated.

“This is leftover from the bail reform from the 60s, when the notion of ‘community ties’ became a thing. People with community ties were more likely to come back to court. The middle-aged white guys who came up with this imagined what would make them more likely to come back to court. They probably didn’t realize at the time that these were things that describe middle-class America and not the general population,” Burdeen said. “That’s why we’re seeing a lot of these disparities.”

Instead, detainees are evaluated based on factors like their age at first arrest, number of violent convictions, and the age of those convictions.

“None of these are yes/no questions. There are scales,” Burdeen said. “So you could have a prior conviction for violence and it could be 30-year-old conviction and it would be less heavily weighted than if it happened three weeks ago.”

If used properly, a risk-assessment program can lead to fewer re-arrests and more people showing up for court dates.

“These tools show that folks are not as risky as we think they are,” Burdeen said.

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