California Gov. Jerry Brown signed into law this week a plan, years in the making, to end the use of cash bail in the state’s criminal justice system. But what once promised to be an unambiguous policy victory for the most progressive state in the country seems instead to have become a lesson in the inherent political and legal difficulties of enacting criminal justice reform.
The law has exposed deep fissures within the criminal justice reform movement. Social justice advocates that had once championed the initiative to abolish cash bail mobilized against the final iteration of the bill, which they saw as having morphed from righteous to dangerous. John Legend, the singer, activist and California resident, channeled those critiques last week when he pleaded over Twitter to the governor, “@JerryBrownGov #BailReform is needed, but NOT #SB10 which replaces the predatory for-profit bail system with a system that threatens to expand unfair incarceration of communities of color.”
“How unfortunate it is that the great state of California, which is the beaming light of progressive change, caved,” said Norma Chavez-Peterson, executive director of the ACLU of San Diego and Imperial Counties, one of multiple California chapters of the civil rights organization that renounced the bill. “It’s sad we couldn’t do something bolder.”
What’s the problem? The new law, which will take effect in October 2019, will replace the old system of money-based freedom with a new one of risk assessments and preventive detention. In critics’ eyes, that means California will continue to give local judges the sweeping authority to keep people incarcerated before they’re convicted of anything.
At the same time, the critique of bail as biased against poor people, unnecessarily costly and one of the main drivers of the mass incarceration of African-Americans, has gained mainstream bipartisan backing. Sens. Kamala Harris, a Democrat from California, and Rand Paul, a Republican from Kentucky, called the bail system “predatory and wasteful” in a New York Times op-ed last year. And states like New Jersey, New Mexico and Kentucky have already chipped away at—though not completely eliminated—cash bail.
But some groups in California and around the country now worry that the nation’s largest state has embraced a well-intentioned but wrongheaded proposal that could fail to diminish—and even drive up—the numbers of people detained before their trials, undermining a broader movement to move away from incarceration. And they fear for the ripple effects when California, as it so often does, leads the way.
“We do believe it has profound national consequences to use the movement for bail reform, which is fundamentally about reducing the number of people in jail and reducing pre-trial detention,” says Sharlyn Grace of the Chicago Community Bond Fund, “to expand pretrial detention.”
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Four decades and multiple presidential runs ago, Gov. Jerry Brown castigated cash bail in his State of the State address as “an obvious tax on poor people.” In the intervening years, the number of pre-trial inmates and average bail amounts rose in parallel, entrenching a system of detention that appeared to be based more on the contents of someone’s wallet than the severity of the alleged crime.
Yet the new law also poses an existential threat to California’s roughly 150 bail agencies. Anti-bail advocates found themselves confronting a bail bonds industry that has spent more than $600,000 lobbying Sacramento since 2017, a legislative blitz that brought Dog the Bounty Hunter to the California capital.
“There’s no need to eliminate the bail industry,” a representative of Aladdin Bail Bonds implored lawmakers. But a state appeals court said there is, deeming excessively high cash bail unconstitutional in January in a stinging opinion that excoriated “a deformity in our criminal justice system.” The day after the law was signed this week, bail industry groups announced plans to ask the state’s voters to overturn it by referendum.
As it turned out, the California court system’s rule-making arm, the Judicial Council, played the preeminent role in determining bail’s vanishing future in California. The judiciary’s ideas propelled the bill to passage even as they united the bail industry and previously supportive social justice advocates in opposition. At the urging of California Supreme Court Chief Justice Tani Cantil-Sakauye, the council released a report last October that recommended replacing cash bail with a “risk-based pretrial assessment and supervision system.” In other words: Whether someone is put in jail shouldn’t depend on that person’s ability to pay but on the likelihood that the person will show up in court again and the risk otherwise posed to others.
Implementing that recommendation ended up creating “a fork in the road,” according to Assemblyman Rob Bonta, a Democrat who was one of the chief legislative backers of the movement.
“It gave the credibility to all of us that this wasn’t just some interest group-driven deal,” says state Sen. Bob Hertzberg, a former Assembly speaker who says this bail bill has consumed more time and effort than anything else in his long political career.
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“In the end, we finally arrived at what is—in my view—the most aggressive, transformational bail reform in the nation,” Bonta said. Existing California law instructs judges to weigh a person’s criminal record and the gravity of the alleged offense in setting bail, and while some judges used formal risk assessment tools, it wasn’t required of them. Different counties also hewed to a patchwork of bail schedules, meaning the same crime could carry different consequences depending on where it was allegedly committed. The new law eliminates the use of cash bail entirely and requires pre-trial risk assessments to be considered for the preventive detention of accused criminals in every county in consultation with the state’s probation officers, which supporters say will make decisions more objective.
But where some backers see momentum, others see betrayal. Critics fear the new law will institutionalize racial bias, as judges will still retain the ultimate authority to decide whether to detain someone before their trial. The ACLU, NAACP and Human Rights Watch all abandoned their support for a move they initially hailed as a breakthrough for justice and fairness. In these backers-turned-detractors’ eyes, eliminating bail was a means to an end: The real goal was fewer people in jail before trial. They now worry that California will head in the opposite direction.
“What you’re really doing is trading off one beast for the next,” says Pete White, executive director of the poverty-focused Los Angeles Community Action Network. “We had not been fighting for preventive detention, the expansion of judges to hold just about anybody they want to hold as a replacement to the bail bond industry.”
“The more time passes, the angrier people are going to get when they think about what happened,” says Raj Jayadev, the coordinator of a group called Silicon Valley De-Bug that pushed the bill in the early going but peeled off at the end. “They co-opted the bail reform movement to test out a new preventive detention system,” he says.
The new system will sort alleged offenders into categories: People who are accused of committing most misdemeanors will be released without going through a risk assessment, while those who are accused of more serious crimes can be held until their arraignment or trial, depending in large part on the decisions of judges and prosecutors.
It seeks to make objective assumptions about who is detained by mandating the use of pretrial risk assessments, which sift through factors like criminal and employment history to project future behavior. By buttressing judges’ discretion with “gobs of data,” says Martin Hoshino, administrative director for the Judicial Council, “the research suggests you’ll get better outcomes.”
But advocates warn that those tools are compromised by the biases that underlie the deeper structural problems with America’s justice system.
“This bill unfortunately is going to lead to people being held in preventive detention based on government’s assessment of who’s risky and who’s scary,” says Robin Steinberg, CEO of the Bail Project. “That’s a terrifying idea,” she says, warning of “a pretrial services industrial complex that will inevitably grow to become a massive governmental administration.”
Supporters pushed back on those alarms. Jessica Bartholow, a lobbyist for the Western Center on Law and Poverty who was immersed in negotiations, says the final bill achieved the goal of erasing “the distinction between someone who has wealth and someone who doesn’t in the criminal justice system.” She echoed supporters in noting that judges already have broad powers to detain people using bail. At least now the system won’t be based solely on money, they say.
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In the days leading up to the vote last week, groups representing politically formidable law enforcement players like district attorneys and police chiefs went neutral on the bill as onetime advocates turned away. Even as lawmakers touted the deal on the Assembly floor, the frustration and uncertainty was palpable.
Someone shouted “liar” as Bonta spoke. Assemblywoman Shirley Weber, a champion of police reform, cited “great concerns about the issue of social justice” and warned that the bill “is going to give more power to our judges.”
“There’s still tremendous bias in our district attorneys and how they charge poor people for higher crimes, and there’s still bias in our judges and how they look at people of color and people who are poor,” she said.
But in the end, she voted for it. So did Assemblyman Reggie Jones-Sawyer, who acknowledged the political headwinds: “I have the ACLU coming at me saying ‘we’re going to lock up more people, more poor people, more African-American people … but I have the bail bonds people on the other side saying that ‘we’re going to be letting a bunch of people out.” Nevertheless, he said, “History will show that using a risk assessment system will be the way to go.”
He wasn’t the only one looking to history. Many legislators implored one another to not pass up a chance, however flawed, to promote more equal treatment under the law, regardless of a person’s means. They see it as a rare victory for justice.
“It is the biggest victory this nation’s ever seen with respect to money bail—it totally removes it from the system, and I think that will be a model for other states,” Bonta says.
But others see this historic moment through a different lens: It could instead serve as a cautionary tale, as the nation’s largest, ostensibly most progressive state fumbled its chance at true change. Steinberg called the night of the bill’s passage through the state Legislature last week “one of the most demoralizing nights I’ve had in 35 years of toiling in the criminal justice system.”
“These types of reforms are generational,” says Joshua Norkin, who coordinates the New York Legal Aid Society’s decarceration project, “and if you give up an opportunity for a substantial reduction in the jail population by passing a watered-down reform, then you may give up an opportunity to revisit that issue for another 20 years.”