Senate Bill 10 Was to End Money Bail
When SB 10 was passed in Sacramento in 2018, it was hailed in many quarters and denounced in a few others. Organizations like the ACLU had promoted it as a way to end pretrial detention for the many poor Black and Brown folks who are regularly caught in a net based more on where they live and their level of poverty than any level of criminality.
Because wealthy people who do get arrested and charged with offenses from the silly to the serious, generally put up bail or collateral such as a house, can then go back to work and their families while organizing their defense with the help of a good lawyer. Poor folks more likely than not, either remain in jail or take a plea regardless of guilt. They lose their jobs, their homes and often their family connections while they wait or if they plea out and allow themselves to be declared guilty.
The whole thing stinks to high heaven and is part of a criminal justice system that is being rightfully challenged because the “justice” part of the system is a misnomer.
In 2018 the California legislature became leaders in a movement to right that wrong and passed a bill, SB10, that along the way was compromised by changes that include a risk assessment grid of sorts, an algorithm, to assist judges in deciding who is too risky to remain free, pretrial. It left judges with the power to make those decisions and some questions about the bias of the algorithm. The algorithm and judges will continue to have discretion over these consequential decisions. However, under the new law and the proposition, the algorithm will be evaluated annually.
Some of the groups, like the ACLU, pulled their support for SB10 because of these compromises in the hopes that a stronger bill could be passed in the future. I’m a bit nonplussed at their reasoning here. Not only is compomise to be expected when passing controversial legislation, this legislation is so groundbreaking, I was shocked that it was passed in any form.
Well, it did pass and was signed. But, the entire bail industry would have been doomed in California, and as the saying goes, so goes the country. As a nationwide $3 billion dollar business including bounty hunters, it gathered its considerable forces [https://www.latimes.com/business/story/2019-10-04/hiltzik-bail-industry-eradication] and led a petition campaign to put the idea of cash bail reform on the ballot.
These folks are pretty smart because they know that the law n’order, law enforcement folks oppose ending cash bail and can make it appear risky. In addition, some social justice orgs oppose it because judges will still have too much power and they don’t trust the risk assesment tools.
If this prop goes down, the bail folks get to keep their lucrative business model and the likelihood of an even more radical change will be severely reduced.
Here is what the League of Women Voters say about the controversy around it:
“Pretrial risk assessment tools as alternatives to money bail are controversial as there is some evidence that these tools can be designed and used in ways that increase racial bias and inequity in the pretrial process. However, a California law was recently passed that requires that pretrial risk assessment tools go through a validation process at least once every year. That process measures the accuracy and reliability of the tools in assessing whether a defendant will appear in court, what the risk to the public is, and any bias the tool might have with regard to gender, race, or ethnicity. Validation reports, as well as other information on the risk assessment tools, must be made available to the public.
SB 10, which is the law that would be preserved by the passage of Prop 25, is criticized by some criminal justice advocates for not going far enough to rectify racial inequities in our legal system. However, if this referendum succeeds in overturning SB 10, it may legally prevent future legislative action to curtail use of cash bail and the commercial bail industry. Furthermore, one of the main obstacles to reform has consistently been the $3 billion bail bond industry that profits from the money bail system. Shortly after SB 10 was signed into law, the American Bail Coalition organized the referendum campaign to repeal SB 10 by placing it on the ballot as Proposition 25. Passage of Prop 25, which would eliminate the impediment of cash bail and its well-funded industry lobbyists, will allow for further legislation to improve on SB 10 and fulfill its promise of a fair and more equitable justice system.”
Once again, here is the most important sentence in the League’s opinion, “However, if this referendum succeeds in overturning SB 10, it may legally prevent future legislative action to curtail use of cash bail and the commercial bail industry.” The LVW supports this proposition.
The ACLU of Northern California takes a neutral position on this prop, saying:
“However, due to legal and political reasons, the repeal of SB 10 could make it much more difficult to advance legislation in the future that would eliminate commercial bail and build an equitable statewide pretrial system that respects the rights and dignity of people accused of crimes.
We are committed to dramatically reducing the number of people held in pretrial detention, eliminating racism in pretrial decision-making, ensuring a fair and supportive pretrial process, and eliminating the exploitative and abusive commercial bail industry that preys on low-income people and people of color.
Prop. 25, whether it passes or fails, will not create a pretrial system that is in line with these goals and values for our communities. The ACLU of Northern California is committed to the goal of transforming our system of pretrial justice to uphold the principles of equality and due process.”
It’s always difficult to say what the outcome or unintended versus intended consequences of such groundbreaking legislation may be, but I cannot believe we as a state would pass up a chance to change the money bail system-with the caveat that the algorithm be changed if we do not see a much reduced number of poor folks in pretrial detention-as the bill and prop provide. Please join me, Democratic Party, the Wellstone Club, SEIU and the League of Women Voters and vote yes on Prop 25!