Governor Jerry Brown has signed a new law that does away with California’s current bail system.
Supporters of a nationwide criminal justice reform movement say It’s about time. Advocates have argued the old system punishes the poor for being poor.
Since this effort began two years ago, the bail industry has strongly opposed it, arguing it was nothing more than a “get out of jail free card”, putting criminals back on the streets.
NBC 7 Investigates has previously reported on alternative bail systems that were being tested across the state, including here in San Diego County.
For years, California judges have depended on a bail schedule to decide the amount for a defendant’s bail, prior to their trial. The more serious the crime, the higher the bail. Now, the new system will focus on a defendant’s criminal history.
The creators of the bill behind the new law, Assemblyman Rob Bonta (D-Oakland) and Senator Bob Hertzberg (D-Van Nuys) are hailing the legislation as the new face of the criminal justice system.
Bonta said the new system will allow judges to “assess an individual based on the size of his or her risk, not the size of his or her wallet.”
“This will be the first state in the union that will eliminate bail completely,” Hertzberg said. “They will judge you as a person, that is what justice is about.”
That’s been a major concern for the bail industry; that the momentum created in California will move across the United States.
“I think all of us wonder does that really make the community any safer because they’ve posted a certain amount of money?” said David Danielson, a retired San Diego Judge. Danielson was a judge for twenty-seven-years and now teaches law at USD.
After reviewing the new law extensively, Danielson said it gives judges additional power when it comes to pretrial decisions on release.
“The hugely important issue from a judge’s perspective is community safety so the question is how do we honor the presumption of innocence?” Danielson said.
To help judges determine if a defendant is a flight risk or if they could be a threat to public safety, the law creates a new government agency in every county called “Pretrial Assessment Services”.
This agency will be made up of “sworn officers of the court with a great deal of responsibility”, as described in the law. The agency will review the defendant’s history in as much depth and as quickly as possible.
The “Pretrial Assessment Services” will grade the defendant’s risk level for the judge and provide the supporting documents to back-up their decision. In some cases, the agency can even make decisions on a defendant’s pretrial release with no judge involved, specifically in low and moderate risk cases.
Judges in San Diego County have already had a taste of this change. Last January, an appellate court ruling shook up the system after it was determined that a retired shipyard worker Kenneth Humphrey had his bail initially set at $600,000. Humphrey could not pay it and the court ruled that a lack of financial resources is not a reason to keep someone in jail, awaiting trial.
The “Humphrey” decision is now considered by local judges when weighing bail decisions. It suggests that instead of incarceration, judges should consider supervised release for a defendant, electronic monitoring, or other alternatives to incarceration.
The new law also mentions these options for judges to consider. The law also stipulates that defendants will not have to pay for monitoring devices, which in some cases can be more expensive than the bail amount.
Danielson notes that more serious crimes, like domestic abuse, will rarely be considered for “easy” or early release under the new law. And while the state is providing some money for all counties in California to create their own “Pretrial Assessment Services” agency, Danielson wonders if it will be enough for a court system that is already strapped for cash.
“I think if judges take a real hard look at what we’re being asked to do I think there’s a kind of relief that comes from being asked honestly to deal with the issue of preventive detention. When is that appropriate? When is it not?” Danielson said.
One organization that is surprisingly not for the new law is the ACLU.
“It cannot guarantee a substantial reduction in the number of Californians detained while awaiting trial, nor does it sufficiently address racial bias in pretrial decision making,” the ACLU said in a statement. “...key provisions of the new law create significant new risks and problems.”
San Diego judges who agreed to speak with NBC 7 Investigates but did not want to be named in our article, said they think the new law will cause some unease and discomfort on the local bench but that they are up to the task.