SAN FRANCISCO (CN) — More people would be released from jail prior to arraignment if California voters approve a statewide ban on cash bail, but racial disparities in pre-arraignment release rates would still persist, a new study finds.
The study, published Tuesday by the California Policy Lab at the University of California, finds that pre-arraignment custody levels will likely decrease if a law eliminating bail is upheld through the passage of Proposition 25, an initiative that has divided civil rights groups fighting for criminal justice reform.
California Policy Lab researchers studied the potential effects of the anti-bail law on San Francisco and Sonoma counties had it been in place from 2017 to 2018.
Senate Bill 10, signed by Governor Jerry Brown in 2018, ensures that criminal defendants will no longer have to post a cash bond to be released from jail while their cases move through the justice system. But its enactment was shelved pending the outcome of a referendum placed on the 2020 ballot by the bail industry.
The law favors computer-based “risk assessment” models to determine a person’s risk to the community. The algorithm analyzes a defendants’ past conduct, family and community ties, and criminal history to predict their safety risk and the likelihood they will make future court appearances.
Under SB 10, most people arrested for low-level misdemeanors will be booked and released within 12 hours without ever undergoing a risk assessment. But there are quite a few exceptions, like arrests for violating restraining orders, prior felony convictions, witness intimidation and threats, or a history of DUIs or warrants for failure to appear.
Felony arrestees would also be detained for up to 36 hours and subjected to the risk assessment.
“High-risk” individuals are held until arraignment, which should occur within 48 hours but could take longer if delayed by a weekend or a court holiday. “Medium-risk” arrestees could be released with conditions set by the court, while those deemed “low risk” must be released on their own recognizance within 24 hours.
The California Policy Lab’s report focuses on pre-arraignment releases because SB 10 gives discretion to judges and prosecutors over whether to hold someone in jail on or after arraignment.
Researchers found that defendants eligible for release prior to arraignment would increase in both counties if SB 10 were enacted; from 44% to 59% in San Francisco, and from 63% to 66% in Sonoma.
“This increase is mostly explained by arraignment releases that would be eligible for pre-arraignment release,” the study says.
It adds that in both San Francisco and Sonoma County, a larger proportion of individuals not assessed as high-risk would be released under SB 10 than under current law.
“In Sonoma, 91% of these low-to-moderate risk individuals would be released prior to arraignment, compared to 65% under current law,” the study says. “In San Francisco, 85% would be released pre-arraignment compared to 57% currently.”
The study assumes that anyone identified as high-risk would be kept in custody until arraignment under SB 10 criteria.
Both counties have strong pre-existing partnerships with the lab. San Francisco asked the lab to review the effect of SB 10 even before Proposition 25. Sonoma came on board later.
“San Francisco in many ways is quite an outlier in criminal justice so we are expecting there are going to be more counties that have similar processes to Sonoma,” Alissa Skog, senior research associate at the California Policy Lab and a co-author of the report, said in an interview.
The counties were also chosen in part because they have fairly different pretrial release programs. Bail was scrapped in San Francisco through a federal court settlement in 2019, and the nonprofit San Francisco Pretrial Diversion Project currently manages its pretrial assessment program. In San Francisco, duty judges also currently evaluate arrestees for release eligibility prior to arraignment. Both counties currently have robust cite and release policies, under which arrestees are fingerprinted, processed at the jail, and released. SB 10 would replace this process by requiring release for most misdemeanors.
Though Sonoma County has a risk assessment tool, it also uses bail as an alternative means of release for 43% of its bookings.
The policy lab’s study found that the majority of people who are released on bail in Sonoma would still be released prior to arraignment. “It’s not a shift in volume but a shift in the mechanism” for release, Skog said.
Back when San Francisco used bail, it did so at a much lower rate than Sonoma — 12% rather than 43% of bookings. Of that 12%, 63% posted bail prior to arraignment, and the policy lab researchers estimate that a large share of those cases would not be eligible for pre-arraignment release under SB 10.
Skog said that results in an average of 17 more hours of pre-arraignment time in custody.
However, a person arrested in Sonoma, will spend on average, 11 fewer hours in jail prior to arraignment. Overall, the number of hours spent in pre-arraignment custody in San Francisco will remain constant among those eligible for release.
While all racial groups will see pre-arraignment release rates increase under SB 10, the percentages are still lower for Black people in both counties.
Black defendants will see their pre-arraignment release rates jump from 35% to 53% in San Francisco, and from 52% to 60% in Sonoma. In San Francisco, 64% of whites and Latinos will be eligible for pre-arraignment release, and in Sonoma, 68% of Latinos and 67% of whites will be eligible.
“This analysis does not explore the cause of disparities in release rates, but Black individuals in both counties are more likely to have factors that make them ineligible for pre-arraignment release,” the study says. “Specifically, Black individuals are more likely to be assessed as high-risk, have a prior violation of a pretrial release condition, have a pending case at the time of their booking, and be booked on a serious or violent felony than Latinx and White individuals.”
Because of the widespread concerns about biased risk assessments, the study says it is imperative that these tools be studied and regularly evaluated.
In 2019, the Legislature passed Senate Bill 36, which requires assessment tools to be reviewed for bias every three years. California’s Judicial Council — the rule-making body for the state courts — will have to publicly post and submit those findings in a report to the Legislature and the governor.
“SB 36 I think is the only legislation in the country that requires validation and checks for some of these things people are rightfully so concerned about with risk assessment tools,” Skog said.
Skog stressed the importance of the California Supreme Court’s role in ending cash bail, regardless of whether Proposition 25 passes. Currently before the court is In re Kenneth Humphrey, whose $350,000 bail on a charge of robbing an elderly neighbor of $7 led to a landmark appellate court ruling that requires judges to consider a person’s ability to pay when setting bail. The high court agreed to hear the case more than two years ago, and recently ordered that judges should consider a defendant’s financial status when setting bail.
The high court could very well declare the state’s bail system unconstitutional just as a federal judge’s ruling led to the abolition of the bail schedule in San Francisco last year.
“No matter what happens in November in some way shape or form, bail reform is coming to California,” Skog said.