Analysis of the SB 10 changing the release policy of accused criminals
Different organizations have recognized the need for reforms of the cash-payment bail system over the year. Alexis de Tocqueville, Democracy in America (1835) stated that “[Bail] is hostile to the poor man and favorable only to the rich. The poor man has not always security to produce” Following such arguments; Senator Hertzberg aimed at addressing such economic inequalities arising due to bail in California, which is considered to punish the poor and the lack of balance on the bail when it comes to people of color.
The current bail system also attracts a lot unintentional negative consequences. For example, in an HBO documentary, Multi-millionaire Robert Durst who was accused of the murder of his neighbor was released on a cash bail of $ 250,000 in 2001. He went ahead to brag about skipping town as he skipped town after being granted bail which he could afford. At the same time, those who were in for minor crimes sit in jail as they await trial and probably plead guilty to get out as they are unable to pay the set bail. During the Hertzberg senate hearing (2017) he gave an example of \”The 16-year-old kid, who was wrongfully charged with robbing a man’s backpack, ended up spending more than 1,000 days in Rikers Island Correctional Centre because his family could not afford the initial $3,000 bail.\” SB 10 is considered a step in making the criminal justice system of California just and fair to everyone. “This current broken system has created such unfairness, such injustice,” said Assemblyman Rob Bonta, “It has also failed to keep us safer because it’s not based on safety. It’s not based on one’s risk. It’s based on wealth, an arbitrary and irrelevant factor.” The SB 10 bill throws out the current cash-bail system and uses the new risk-based pretrial analysis system. It will be operated by locally established pretrial service agencies (McGeorge, 536).
The agencies will evaluate the defendants based on the individual’s likelihood of voluntarily returning for court hearings and their chances of re-arrest. The bill will release a person considered to be low risk to public safety or fleeing with no monetary conditions. The conditions for release are not yet clear but are assumed to include activities such as check-ins with authorities between hearings or electronic monitors attached to the defendant\’s ankle.
The risk assessment team will also evaluate those considered to be ‘medium risk’ individuals to be released or held depending on the local standards under the new law. However, the high-risk individuals would remain in custody until their arraignment. This will also apply to those who have committed certain sex crimes, violent felonies; those arrested for the third time in 10 years for driving under the influence, those under supervision by the courts, or violated the provided conditions of the pretrial release in the previous five years. The prosecutors will also be able to file preventive detention which will block the release pending trial if there are concerns on the safety of the public or the likelihood of the defendant\’s appearing in court.
The bill is passed due to the contest of the current bail system which is considered to be unfair and unsafe. The release conditions are argued to be based on the capability of the defendant to pay the cash bail set and not the safety of the public. “Detention decisions that are based on money and personal wealth are inherently inequitable and do nothing to keep us safer,” Hertzberg
The bill also intends to help California prevent overcrowding in the prisons and jails. SB 10 protects California form lawsuits due to overpopulation. The overcrowding of the California prisons which violates the Eighth Amendment led to the California governor to act drastically to lower the prison population and help avoid any overcrowding problems. The bill also aims at ensuring public safety and justice at the same time.
Stakeholders who will benefit from SB 10
The bill is a win for the civil rights activists who have opposed the cash-bail payment system over the year. They argue that the cash bail makes an uneven playing field which allows those who are able in the society regarding money and assets to avoid a jail term and incarcerates the poor.
The families, friends and private bail agents of the accused will also benefit as they will no longer provide monitory support to the accused in the form of bail as it will be replaced by various forms of supervision such as electronic monitoring. Those accused of minor felonies will also benefit as they are not required to post bails to be released as they wait to be arraigned in court.
Stakeholder who will suffer from the SB 10
The Golden State Bail Agents Association expressed their opposition to the bill as they believe the bail agent association is one of the stakeholders who will suffer due to the abandonment of the cash bails. They represent the bail agents throughout California with more than 300,000 defendants out on bond, and they are responsible for the accused at no cost for the taxpayers. Taking a right away would subject the accused on the taxpayer programs and government-run as the government would be responsible for them resulting in more costs. The state would also suffer as the bond industry funds the state through the paid bail bonds, premium tax, and court costs. The annual premium tax paid to the California state by bail insurers will also be lost. The services of the bail agents by the defendants to pay their initial bails will be lost, and the agents will also not be in a position to pay the tax revenue. The judges, taxpayers, crime victims, district attorneys, bail industry and law enforcement unions are also likely to suffer from the bill.
There are also other reasons that lead to accused being in jail apart from bail; the law argues that a big percentage of the accused in jail is due to the fact that they cannot afford bail. However, other reasons such as probation or parole violations, the risk of public safety, violent crimes committed and some are also held cause of other jurisdictions. The judicial system already has a system where judges can adjust the amount of bail for those who cannot afford and have committed lesser crimes which are not considered to be a threat to the community (Ottone Sarah & Scott, 28)
The pretrial service department will be at the expense of the taxpayers as the defendants will not be charged service costs or reimburse the county even when the defendant is in a position to pay. The taxpayers will fully fund the departments\’ services. It will crowd out funding for other programs and agencies such as the district attorney in the county, mental health services, and sheriff’s office. The bill will also increase the number of fugitives within the state, as they will most likely evade hearing to avoid the prosecution. More work for the prosecutors as they will have to review cases in order to facilitate release from the jail.
The local government will suffer as their cost will go up due to the need to hire more staff to operate the risk assessment in order to set bail before hearing as included in section 8. The process of risk assessment is staff intensive as there is a need for one to plug and verify the information before preparing a report for the hearing. The persons on felony charges will benefit as they will not have to post bail to be released.
The judges will suffer due to court congestion as they will have to do pretrial for all the accused unlike in the previous system where the accused could post bail and avoid hearing. The judges are also stripped of the authority to determine the bail in most of the cases. The current system stated that, in setting, reducing or denying bail, the magistrate and judges have to consider the public safety of the victims and strive to protect them, the seriousness of the offense, the criminal record of the accused and their probability of appearing in the hearing. The safety of the victim and public safety are the primary consideration. These are changed in the SB 10 bill, and the judges have to follow different priorities to set bail.
Reasons why SB10 a bad piece of legislation
SB10 is considered to heighten the risk of public safety. Those arrested for selling drugs, vandalizing homes, stealing huge sums of money, burglarizing businesses, selling drugs or identity theft will be granted pretrial release without appearing before the judge, post bail or adhere to any conditions before release. The bill also does not consider residential burglary as crimes to be considered before release.
The bill will also create more congestion in the courts. The judges are to post bails or impose pretrial release only after hearing. Therefore the prosecutors will be requesting for lots of hearing even though California courts are already characterized by a lot of hearing and adding the pretrial; they will be clogged with bail hearing.
The bill completely upends the way in which we handle arrest warrants, to the detriment of the court system and the arrest themselves. It eliminates the ability of the judges to set bail when issuing a warrant. It will ensure the suspects will not face the law promptly. Those arrested on warrants will not be in a position to be released from jail until the judges’make the decision based on their ability to pay and those in a position to pay will have to wait in jail till the judges hear their cases.
The bill also places a huge burden on the prosecution due to the number of hearing and also in some cases they are required to have witnesses testimonies within 24 hours in cases of contested hearings where the dangerous felonies are being set free. The bill also creates a presumption of release pending the trial that law enforcement will seldom be able to rebut within the timelines contemplated by the bill, even when the court is faced with a violent criminal facing serious felony charges.
The bill makes judges consider the presumption of innocence during the pretrial release decision. The presumption of innocence is logical at the trial level not in the context of making bail. This is supported by Bell v. Wolfish (1979) 441 U.S. 520. 533 state that the presumption of innocence is not applicable in the determination of the rights of pretrial the defendant during confinement before the trial.
The SB10 is also based on the assumption that the bail system affects people with differing levels of income. This is already addressed as the criminal court system has a pretrial service division in place which screens defendants and recommends their release on appropriate conditions, without posing bail. It also considers that the accused does not pose a danger to the public or no risk of non-appearance. The bill is considered to be a serious risk to the public safety as it goes further in releasing the accused.
There is also opposition on the bill based on the county and judicial costs. The SB10 bill contains an unfunded mandate that requires every county to establish a pretrial service agency equipped with new employees and other required resources to evaluate and prepare a pretrial risk assessment report for each one of the accused.
The cost is compared to that of New Jersey who adopted a similar jail program where at three months, the program is estimated to cost $ 450 million yet the population of New Jersey is a quarter that of California. The bill is based on the District of Columbia pretrial which costs $65.2 million annually with an estimated population of 670,000 people. In considering the two states, if the bill is passed, it will cost California more money in a year. There is also an additional cost in monitoring the thousands of defendants to be released using the seven-day-a-week pretrial system. The cost of finding the defendants when they fail to appear in courts due to lack of the insurance policies is also added. The University of Texas at Dallas p (2-3) found out that the cost of finding the suspects who fail to appear in court hearing are estimated at $ 1, 775.00.
The bill sponsors argue that the holding few people in jail will lead to savings which will cover the cost of the pretrial service agency by assuming that 63% of those in jail are there due to failure to post bail. However, it is noted that most of the defendants in jail are not eligible for jail due to holds from other agencies and sometimes serving previous convictions. According to a study conducted by American civil liberties Union study of the Los Angeles County Jail system (2012) only 13% defendants are eligible for pretrial release. Most defendants are released based on the bail systems, and the savings will not be enough to fund the program, and the state and counties will have to new high cost in the implementation of the legislation.
The bill is also considered unconstitutional has it denies the defendant the right to bail by sufficient sureties. The California constitution allows the defendant the option to secure release through bail bond posted by the commercial surety. The bill will force those who are in a position to pose bail to sit in jail or to agree to the terms of the pretrial release conditions to be released.
The pretrial services are also considered to have a poor performance record when it comes to rearresting and locating defendants released without bail.
It will also allow the current offenders on the street to commit new crimes and harm more victims and potential witnesses before trial. The defenders who do not pose such risks already have measures in place to be released from jails and avoid misuse of the jail (Subramanian et al., 2015).
The timeline for the release of the defendants is also short which will not allow the police and the judges to make sensible decisions. The pretrial release scheme, for example, requires that when one is arrested on Wednesday, the prosecution has to complete reports by Thursday as Friday is a court holiday. The report should be presented to the district attorney who is expected to make a careful charging decision in time. The time frame is too short and not enough for the investigation to prevent the release of dangerous criminals. Therefore the changes should be carefully measured and looked into.
However, the Assembly Appropriations Committee states that the law will likely reduce the cost of the system which is meant for the courts to create a system for pretrial assessment services to determine if a person can be released. The legislative cost is estimated at an annual cost of about $200 million. The Assembly committee analysis also emphasizes that there will be millions of dollars saved annually in jail costs in cases where the fewer defendants are held before trial and no money is saved if the jail administrators use the bed space to house convicted criminal for a longer period.
The Human Rights Watch also opposed the Sb 10 as they claim that the bill is more harmful and provides unchecked discretion to the judges as they rely on unfair risk assessments to prevent the people accused of a crime from being released back to the community until their cases are solved. They believe the risk assessment will be used unfairly to determine who to be released back to the community. They, however, acknowledge the need to reform the bail system.
McGeorge, L. “SB 10: Punishment before Conviction: Alleviating Economic Injustice in California with Bail Reform.” Vol. 49, 2018, p.533-552.
Ottone, Sarah and Scott-Hayward.” Pretrial Detention and the Decision to Impose Bail in Southern California (August 1, 2018).” Criminology, Criminal Justice, Law and Society, Vol. 19, no. 2, August 2018, p. 24-43.
Robert Hertzberg. “Senate Floor Hearing of 05-31-2017,” DIGITAL DEMOCRACY (May 31, 2017),https://ca.digitaldemocracy.org/hearing/52858?startTime=1599&vid=88f9db7b50bc3eff7abdfa443d0561f0 [hereinafter Senate Floor Hearing] (on file with The University of the Pacific Law Review); Pinto,supranote 45.
Rob Bonta. “Assembly Standing Comm. on Pub. Safety Hearing of 07-11-2017, “ DIGITAL DEMOCRACY (July 7, 2017), https://ca.digitaldemocracy.org/hearing/54079?startTime=0&vid=58c84d9f8 e2ec0d35c89bbe71640b4ee (on file with The University of the Pacific Law Review).
Subramanian R, Delaney R, Roberts S, Fishman N, McGarry P. Incarceration’s Front Door: The Misuse of Jails in America. Vera Institute of Justice; 2015. https://www.vera.org/publications/incarcerations-frontdoor-the-misuse-of-jails-in-america.
Analysis of the SB 10 changing the release policy of accused criminals