California Bill to Eliminate Bail System Clears First Hurdle

SACRAMENTO — A bill to do away with California’s bail system — which reform advocates say punishes the poor for being poor — cleared its first legislative hurdle Tuesday, inching the state closer to sweeping criminal-justice reform being proposed across the country.

Passed 5-1 by the Senate Public Safety Committee, the law could lead counties to release many of the 46,000 Californians behind bars, awaiting trial or sentencing without involving a bail agent. Washington, D.C., and New Jersey have made similar changes — as has Santa Clara County — and California is one of eight states weighing reforms.

“Somebody is arrested, and because they don’t have a few bucks to get out of jail, they’re sitting in jail,” said Sen. Bob Hertzberg, D-Van Nuys, the lead author of Senate Bill 10. “That is not justice. That is not what this country is about.”

The bail industry, which could be obliterated by the proposal, has come out against the measure. And some law enforcement groups are sounding a cautionary note, saying they don’t want such a high-stakes overhaul to be rushed.

But proponents, including the ACLU and the state’s public defenders, say the change is long overdue. They say too many people await trial behind bars because they and their families can’t scrape together the money to post bail, while wealthier defendants can be quickly released from jail — with minimal consideration of their risk to public safety.

The most common bail amount is $50,000, which translates into a $5,000 nonrefundable fee to a bail agent in exchange for a person’s release. If a defendant disappears, the bail agent, who buys insurance for the bail, is on the hook for the full amount.

But SB 10 — and an identical bill introduced in the Assembly by Assemblyman Rob Bonta, D-Oakland — would toss county bail schedules in the trash. Instead, counties would conduct “pretrial assessments” in the hours after someone’s arrest to determine whether the defendant poses a safety threat or a flight risk. The county also would create a plan for low-risk defendants aimed at making sure they show up for their court dates after their release.

Under the Senate bill, a judge would determine whether to release a defendant in cases involving serious felonies, domestic violence or stalking or violations of a court order.

Holding pretrial defendants in jail costs taxpayers more than $100 daily on average — and, reform advocates say, it not only crowds jails but can also turn the lives of defendants and their families upside down, costing them their jobs and even homes.

One study cited in a report last fall from the Criminal Justice Policy Program at Harvard Law School found that low-risk defendants are more likely to commit more crimes upon their release from jail than those who get out within 24 hours of their arrest.

Melodie Henderson, 32, of San Diego, recalled the moment after her arrest on a felony battery charge more than a decade ago when she and her grandparents learned that her bail would be set at $50,000.

“When we heard that number, it was kind of this hopeless, sick-to-my-stomach kind of feeling,” she testified before the Senate committee Tuesday.

Henderson spent almost two weeks behind bars while her grandparents gathered the $5,000 bail fee, said Henderson, who later took a plea deal and was sentenced to community service. But, she said, it has taken her and her grandparents more than 10 years to get out from under that debt and related credit-card fees, which swelled the total to more than $10,000.

The state does not have an estimate for how many inmates would be released under the proposed system, but Washington, D.C., releases 85 percent of those arrested within 24 hours, said Cherise Fanno Burdeen, CEO of the Maryland-based Pretrial Justice Institute, which has worked with state and local governments on bail reform.

At the forefront of the effort in California is Santa Clara County, which last fall moved to help inmates make bail or otherwise be released by the court after a two-year review spearheaded by county Supervisor Cindy Chavez. One estimate from county officials said that when the plan was approved that one-third of the 3,000 inmates awaiting trial or sentencing would be released, saving $200 daily for each inmate. Under the plan, some defendants are supervised by community organizations such as Silicon Valley De-Bug, which advocates for criminal-justice reforms.

Fanno Burdeen called Santa Clara County “a California laboratory for how this could be effective.”

The Senate bill has at least one Republican on board — Sen. Joel Anderson, of San Diego County, is a co-author — and proponents hope to gain more traction with the Republican caucus. But Anderson was not at Tuesday’s meeting, and the lone Republican in attendance, Jeff Stone, of Murrieta, voted against the measure after raising questions about the effect on the bail industry. Bonta, sponsor of the Assembly version (AB 42), also appeared before the Senate committee to make his case for the changes.

Chief Justice Tani G. Cantil-Sakauye last fall raised similar concerns about the bail system and created a working group to study current practices and recommend changes.

A number of key law enforcement groups — including the statewide associations for county sheriffs, district attorneys and police officers — have yet to take a position on the bill. But some organizations are trying to pump the brakes, noting that a major report on bail reform from the state’s Supreme Court is not expected until mid-December.

“We just think the bills are premature,” said John Lovell, a lobbyist for groups including the Association for Deputy District Attorneys and the California Narcotic Officers Association, “and a more responsible and prudent legislative approach should be to hold off action until we get the report.”

The bail industry says the measure would put 1,600 people out of business. “We’ll be ruined,” said James Rudisill, who runs a bail bond business in downtown Oakland. “It’s insane. I don’t know what they’re thinking about.”

Bail lobbyists argued Tuesday that eliminating money bail would hurt the many women and minorities who own bail companies in California. But that argument was lost on Anita Wills, of San Leandro, who testified in support of the bill with a group of women in the Oakland-based Essie Justice Group.

Wills said the burden of bail payments — and pretrial incarceration, when those payments are impossible to make — falls heavily on women of color like her whose relatives get caught up in the justice system.

“The face of the (bail) businesses in our communities may look like us,” she said, “but the people who are making the money are the insurance companies.”


Two identical state proposals — Senate Bill 10, by Sen. Bob Hertzberg, D-Van Nuys, and Assembly Bill 42, by Assemblyman Rob Bonta, D-Oakland — would do away with California’s bail system.
How would it work? The bills would require agencies that offer pretrial services — all but a handful of counties already have them — to do a risk assessment of defendants soon after they are arrested. The assessment and accompanying recommendations would be sent to a judge, magistrate or court commissioner who would then order the release of defendants — with or without conditions — within a certain number of hours.
Would this apply to everyone? Those accused of domestic battery, stalking, witness intimidation and serious felonies would have to appear in court for a hearing with a judge or magistrate. And if the district attorney’s office files a motion for a defendant to be kept in custody, that would also require a court hearing — but the court would have to make certain findings before it could agree to keep a defendant behind bars.
Could a judge still set bail? If a judge determines the person is a flight risk, he or she could still set bail, but at the “least restrictive level necessary” to ensure a defendant’s return to court.
Source: Texts of SB 10 and AB 42

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