Bail Reform Money Bail

Bail Reform Passes in CA Assembly, But ACLU & Other Past Supporters Now Oppose New Version of SB 10

Celeste Fremon
Written by Celeste Fremon

UPDATE:  On Tuesday, August 21, the California senate passed SB 10 in a 26-12 vote.  The bill is now headed to Governor Jerry Brown’s desk.  

Before the vote, Senator Holly Mitchell (D-Los Angeles) read a lengthy statement explaining why she was voting for for the bill.  The statement seemed, to a great degree, aimed at that justice advocates who had recently bailed on the proposed legislation.

“Today, the legislature took an important step forward in reducing the inequities that have long plagued California’s bail system,” the governor said in a statement.


Bailing advocates

On Monday, Senate Bill 10, the much labored over bail reform legislation, passed through the California State Assembly in a 41-27 vote, which means it now goes on to the Senate. But, on the day of its passage, the high-profile bill suddenly faced very vocal opposition from some of its biggest and earliest supporters.

Certain justice advocacy groups began to peal off on Thursday, after the bill’s author, State Senator Robert Hertzberg (D-Van Nuys) unveiled amendments to the legislation, which he introduced in 2016, and has worked on ever since.

On Thursday, while the ACLU didn’t oppose the bill, it went from strong support to neutral in the face of Herzberg’s amendments.

“Since the introduction of SB 10 in December 2016, the ACLU has worked alongside a coalition of criminal justice, labor, faith, attorney and community organizations, as well as Senator Hertzberg, to replace the current money bail system with one that safely and substantially reduces the number of people in jail pretrial, addresses racial bias and disparity in pretrial decision-making, and ensures justice and fairness in the pretrial process,” wrote Natasha Minsker, Director of the ACLU of California Center for Advocacy and Policy, on Thursday.

Over the weekend, however, a closer look at the changes appeared to shatter the ACLU’s neutrality.  On Monday, the Executive Directors of the various ACLU California affiliates announced that the chapters had moved their position to “oppose,” on the bill they had helped craft.


The 180 shift

“We oppose the bill,” they wrote in part, “because it seeks to replace the current deeply-flawed system with an overly broad presumption of preventative detention. This falls short of critical bail reform goals and compromises our fundamental values of due process and racial justice.”

The new statement was signed by ACLU directors Hector Villagra in Southern California, Norma Chávez Peterson, of San Diego and Imperial Counties, and Abdi Soltani of the Northern California chapter.

The newly amended bill also generated its own local tweet storm over the last few days, particularly on Monday.

Laura Pitter, the interim Deputy Director of the US Program at Human Rights Watch, tweeted her dismay at the turn of events. “California’s attempt at bail reform #SB10 ‘replaces money bail with a system that is likely to incarcerate more people, uses racially biased risk assessments, and gives judges nearly unlimited discretion to lock people up…'”

“Regardless of how you feel about the substantially revised #SB10,” tweeted Scott Graves, director of Research for the California Budget & Policy Center, before the vote.  “….it’s being debated on the Assembly floor without the benefit of a legislative analysis. At this point, no analysis of the new text is available to the public.”

The more than 20 justice advocate groups, that opposed the bill by Monday,  said, in essence, that they felt that the new version gives judges “unchecked discretion” to detain people with no due process, by replacing the presumption of money bail, with a practice called preventative detention that will, they said, create a “presumption of detention” where defendants, especially poor defendants of color, would still end up being locked up if, unfairly or not, a judge decides they are a danger to the community and should be held without the possibility of release, meaning that now even the option to somehow raise the money to pay a high bail will vanish for certain people.


Giving jittery judges too much power?

As Erwin Chemerinsky put it in an Op-Ed for the Sacramento Bee, “Although I strongly support eliminating money bail and urged passage of SB 10, the recent amendments to the bill could lead to the detention of more people, and likely will exacerbate racial injustices.”

Chemerinsky, who is both dean and professor of law at the UC Berkeley School of Law, wrote that the key problem with the revised version, which was clearly tinkered with in the hope of bringing more law enforcement on board, is that there is “no criteria for how risk is to be determined.” Instead, the bill, he points out, leaves this to each separate locality, and ultimately “gives judges total discretion to decide whether to release an individual and on what conditions. The new version, also allows prosecutors to file for this “’preventive detention,'” which blocks “the defendant’s release pending a trial.”

One of the factors that has created such an awful, unjust morass with money bail, according to Chemerinsky, is that absent any system by which to determine risk, “judges often will over-predict dangerousness.”

Judges don’t want to make a mistake, and have someone they released commit a serious crime, causing them to be severely criticized, or worse, maybe recalled, or defeated in the next election.

“But keeping a person in custody never risks such consequences for a judge.”


Perfect v. good

Yet, despite the criticism that followed, last week, Hertzberg was upbeat when he unveiled the changes to the bill.

“Since we introduced this bill nearly two years ago,” he said, “I have lived and breathed bail reform. Currently, we have a system that punishes people and takes away their liberty, simply because they have less money. That’s not fair, and it’s not protecting public safety. The point of this bill is to treat people as people, and to consider their public safety risk and their flight risk on an individual basis.”

The bill’s lead joint author in the Assembly, Rob Bonta, D-Oakland, was unambiguously thrilled with the bill’s passage, despite the fact that some of his colleagues said in so many words to reporters,  “Hey, it’s not perfect but it’s better than nothin'”

Monday’s vote was “a clear victory for justice, fairness, and safety,” Bonta said in his post-passage statement. “We are now a giant step closer to becoming the first state in the nation to abolish the fundamentally broken for-profit, predatory money bail system. For too long, our criminal justice system has treated those who are guilty and rich better than those who are poor and innocent. No more.”

In the Senate, Hertzberg will have to face the highly vocal and well-financed opposition of the money bail industry. And now he will also have to deal with the bill’s newly disaffected former sponsors.

Perhaps with the latter reason in mind, after the assembly vote, Hertzberg released a statement that evoked Jewish tradition, which sounded very much like a nod to the justice advocates. “Pirkei Avot teaches us,” he wrote, “‘You are not obligated to complete the task, but neither are you free to desist from it.’ The California Legislature,” Hertzberg continued, “will continue to examine bail reform…”

In other words, don’t let the perfect become the enemy of the good.

Reportedly, Brown supports the new version, as does democratic frontrunner in the race for governor, Lt. Governor Gavin Newsom.

The Chief Justice of the California Supreme Court, Tani Cantil-Sakauye, an early supporter of bail reform, also supports SB 10 as it stands.

The Senate has two weeks to decide whether to send SB 10 to Gov. Jerry Brown’s desk for a signature.  So…watch this space.

25 Comments

  • Point me to all the articles you’ve written Celeste or guests have about crimes committed by those out on bail or simple cite outs. Simple fact is all you social justice frauds care nothing about the victims, never have and never will. You all play the race card continually and it’s disgusting, especially considering who the majority of victims are. The truth about crime in our country just doesn’t matter to you frauds and the lives of the innocent in communities of color are always an afterthought, you people are pathetic.

  • Gosh, it’s almost like people are worried criminals might not show up to court if you let them go on just a promise. (Of course not silly liberal white ladies, they don’t seem to be worried about that at all). Interestingly, Chemerinski’s concerned that judges are too concerned about the risk of releasing criminals back into the public. Guess we can thank God Chemerinski’s not a judge, but he is a world class blow hard.

  • Sure Fire, caring about the victims and the rights of those arrested are not mutually exclusive. Please do not forget that the folks of whom we speak have yet to be convicted. Some of them may be sitting in jail because of a t-shirt with ketchup that some fine officer “found.” And, please, no crocodile tears for the victims of color. Some of them are the same folks you and your ilk harass, stop, frisk, arrest, etc.. And, I know you “don’t see color” and you “treat everyone equal,” but the numbers say otherwise. All things equal (listen, before you pull some anecdote out of your ass, All Things Equal), black and brown people are more likely to get stopped, searched, arrested, over-charged, and get the worst plea deals.

    Maj. Kong, that is silly. No one wants those facing charges not to show up. The issue is how we get them to show up, but do so in a way that doesn’t unnecessarily ruin their lives before they are convicted. There are alternatives to bail, albeit more suited for some crimes. Also, the amounts demanded for many may as well be no bail since it is not commensurate with the crime, the arrested’s ability to pay or what it would take that person to get back to court to face the charges. In addition, the system we have now basically requires jail time of poor people before they have even been convicted, and forces them into pleas to get out, sometime for charges you and your ilk made up. Funny how when its a cop that has been accused of assault or murder of an unarmed person, you jump to their defense, you act as judge and adjudicate him innocent before a trial and demand, under the most damaging evidence, that people not jump to conclusions and recognize that he is innocent until proven guilty. When the accused is a black or brown kid, you say lock them up and sort it out later, because, no doubt you think, even if he did not do what you arrested him for, he probably did something else.

    • If someone’s life would be ruined by the expense of bail, bond or worse yet taking a plea, then stay in jail. Obviously you haven’t been making the best life decisions so why not take a break on the county dime? People who’s time is actually worth something can make bail or bond. (That includes cops cf). Cf, there is no magic alternative, You can’t save people from their own poor decision making, no matter how hard silly white liberal ladies try to convince you otherwise.

    • CF, go ahead and point out to me where you or Celeste have spoken of victims of color who I routinely have had to deal with for too long unless it’s the victim of what you perceive of the way over used term “police violence.” Now tell me the odds of them being the victim of some out of control, racist or rogue cop compared to someone who looks just like them. Next explain why you cop hating phony social justice types never speak of these victims in your own communities, why do you constantly shield the biggest threats to your weakest members?

  • This so-called bail reform is concerning. If it passes it will be a tool for the sheriff to continue violating his deputies constitutional rights and the rights of others when it suits him politically. It is not a secret that many of the fake cases he has manufactured against his own deputies were blessed by the DA’s office and mutually agreed upon. They overcharged deputies with alleged crimes with little or no evidence. It now means the sheriff and the DA will exert political pressure on the judges to keep a falsely accused deputy in jail, “to set the tone in the organization.”

    This state justice system is looking more and more like a perfect dictatorship, like the system of a banana republic, where people are locked up, whether guilty or not. It means the political class can manufacture criminal cases against their enemies, and lock them up just as they do in Cuba and Venezuela.

    There is no doubt, the liberals may have a good intention, in the process, they erode the US constitution.

  • @JC – “It is not a secret that many of the fake cases he has manufactured against his own deputies were blessed by the DA’s office and mutually agreed upon. They overcharged deputies with alleged crimes with little or no evidence.”

    I would think some attorney would love a large class action lawsuit against the sheriff’s department for FALSE CRIMES AGAINST DEPUTIES. I would assume all of these cases went to ICIB for criminal investigation and they found enough EVIDENCE for the DA’s office to file criminal charges.

    As far as setting the tone – conduct like this from the top only nudges deputies to transfer to another department. Somebody should start top down with house cleaning. Never shit on the folks who make up the work force. Rule one. Are the low supervisory fruit (sergeants, lieutenants, some captains) that eager for the next bump they abandon their proper role as supervisors, PROTECT YOUR PERSONNEL.

    Way different department – glad to be gone. That is why every radio car I pass has the windows up and the blinders on. Pro-active law enforcement can now be placed in the history books as something that was.

    • As part of the many provisions required as part of the change within LASD was the increase in the number on first line supervisors (i.e., sergeants). Although initially it was seemed to be a good thing on paper, as it justified the creation of many supervisor position all the way up the chain just like LAPD (no coincidence there), it also created an easy person to blame, scapegoat and serve up to the head-hunting public, when things don’t go exactly as planned. Sergeants (patsies) are an easy mark when it comes to Monday morning quarterbacking, finger-pointing and laying blame when executives want to deflect blame from where it truly lies.

      There has never been a time in the Department’s history when you have folks who don’t want to promote for this reason. Gone is the prestige, sense of helping to mold the future leaders of the Department or trying to make a difference. Instead, it’s all about career survival and not being subject to an investigation whether it be administrative or criminally, or both. There are quit a few sergeants who have been relieved of duty after many years of trouble free service as deputies who regret taking the bump.

      Custody division is the worst, with folks either hiding out in administrative spots they cling to like there’s no tomorrow, boot lickers who will do anything to remain in their admin spots and folks with “old injuries” that preclude them from putting themselves in harms way. All the while, the lowly scape-goat line supervisors (sergeants) are forced to put their careers at risk everyday with no light at the end of the deep, dark tunnel.

      It’s a shame deputies and sergeants no longer fear the violence, threats against there lives and dangers from the “bad people” they encounter and have to respond too but rather the internal policies and procedural head hunting that comes after. It’s easy to criticize, quote policy and play the “shoulda, woulda, coulda” game in the peace and tranquility of an office chair around a board room table where the only risk is a paper cut.

    • Yep, the great majority of cases filed against deputies were dropped later by the DA’s office, dismissed by the judges, and acquitted at trial. You have not heard because the media does not care about that. To make an arrest, and to obtain a filing against a deputy is a lot easier than filing a case against a gang member in possession of a gun, trust me on that.

      Yet, to obtain a filing, all is needed is “probable cause” a very low standard of culpability. With just a person saying you did something wrong, especially if it is the “police” saying it, coupled with the political pressure exerted by the top at the Sheriff and DA’s office is enough to get filed on. Yet to get a conviction is a little more complicated, the person has to be culpable, “beyond a reasonable doubt.” However, in the interim, they place deputies through the grinder, having to fight for their liberty, family, and livelihood.

      So far it appears that judges and the juries are not buying the sheriff’s allegations against deputies. The civil service has not been buying the sheriff’s allegations against deputies either, although that is changing, as the civil service commissioners are under heavy political pressure to help the sheriff “reform” the department, “to set the tone.”

      It is very nice and I am happy for you, you were able to make it through retirement, under this regime. The chances of them putting a case against any deputy have significantly increased. You worked in the sheriff’s department, and you know that once a person is a target, they will get “creative” and get what they want, the stat. The current regime’s goal is to go after deputies, ask around, ICIB/IAB is larger than most specialized units in the department. In fact, homicide detectives have been assigned to ICIB/IAB “on loan” to work on deputies cases, and some were brought out of retirement. Under the current regime’s eyes, deputies are the criminals, forget about homicide investigations, they can wait.

      Now the deputies are not naive, they know what is going on, the reason for the low morale, low productivity, the early retirements, the lateral transfers, and the poor recruitment.

      The sheriff’s slogan to recruit is “unlimited possibilities”, yes, even the possibility of going to prison, for attempting to do the “Lord’s work”. I know people at the recruitment unit, even them feel guilty for lying to prospective candidates, knowing that things are not right in the sheriff’s department. Jim McDonnell and the county politicians know it. That is the reason they hired a firm to conduct a “study”, of the “study” they contracted to “study” the reasons for the low recruitment and to find solutions.

    • ….they not only crap on them, they flip the lever and eagerly flush them down into the abyss. It’s clear that many of the executives are only worried about their careers, money, car, pensions and attaining the next rank. They are so far removed from actually careing about the safety of the work force and their needs it’s not even laughable….it’s sad.

  • How did the Bail Reform subject morph into LASD internal problems?
    Tanaka takes a hit for corruption which was righteously so and McDonnell takes the hit for reform. Amazing!
    Villanueva already knows the roadblocks and whiners. Ask his thoughts before the election so you’ll know and hopefully the remaining Tanakanites will abandon ship through LACERA

    • Shaking My Head

      “Ask his (Villanueva’s) thoughts….”

      With THAT in mind it should be noted that

      https://lasd.news

      is keeping track of Sheriff Candidate debates, video interviews, etc.

      I would still like to know how come an LASD Sergeant got ROD’d for five years, got returned to duty, and received only a ten day suspension for the transgression that got him ROD’d for five years.

      WTF!!!

  • I think it’s a combination of forward thinking and considering the effects of intended and often un-intended consequences. If only the great judicial/legislative thinkers in Sacramento had considered this prior to legislation like AB-109, Prop-47 and others near-sighted bills where would be.

  • Back to the topic,
    I realize that some type of bail reform is necessary. Nobody wants to see the sole bread winner for the household in custody awaiting a court hearing. Perhaps if the system moved more quickly this would not be an issue. If the public defenders office was not so over burdened with defending others this would not be a problem. Perhaps not getting arrested for a crime would certainly solve the problem. Some of the comments in the story are great,

    Monday’s vote was “a clear victory for justice, fairness, and safety,” Bonta said in his post-passage statement. “We are now a giant step closer to becoming the first state in the nation to abolish the fundamentally broken for-profit, predatory money bail system. For too long, our criminal justice system has treated those who are guilty and rich better than those who are poor and innocent. No more.”

    Who said life was fair. I was always taught, work hard, think before you act, treat others as you would like to be treated if the situation was reversed, and OBEY THE LAW. It makes it sound as though the poor go into jail as a concentration camp. Some poor folks are just that, some poor, some uneducated, some unskilled, and some seek additional funds via crooked measures. We created laws to keep the bad folks away from the good. Should we just give everybody $40,000 of welfare and hope for the best. California is going to go right down the path of self destruction. MAD MAX here we come on a bullet train. Yah ha

  • Anything is possible in a state that bans straws, mandates that kids drink milk or water with their meals, and allows illegals to be …….well legal. Why not allow crooks to walk out of jail and “promise to come to court”. If you can’t trust a crook, who can you trust?

    Scotty, where’s that beam?

  • Banning plastic straws is not a bad idea, some of us are old enough to remember paper straws which would help the ECO System.

  • Maj Kong, we can save people from their bad mistakes. We constantly save crooked and abusive officers. The city provides the defense and pays the judgement. Police is the largest budget item and that includes a generous salary and benefits, one that allows for a great legal defense, as you do not get an overworked public defender. And then, once the city is found negligent, they, we, pay the judgment for your mistakes. And, while all this is going on, while you are on admin leave, you continue to get your salary. So, we do pay and save some people from their mistakes.

    Sure Fire, we do speak about the victims…the victims of police harassment, police violence, police corruption, police shootings, etc. That is enough, as you can see from Celeste’s work, to keep one busy.

  • We should just get rid of the cops and have an every man (woman, Q) for themselves free for all. Since all cops are out to victimize, frame, oppress and kill innocent people, we should disband all the police forces around the country…hell the world. If someone commits a wrong (laws and crimes just words), let’s use the Darwin principles of survival of the fitist. Who ever has the most money, can afford the best defense force and guns will always be victorious. Take what you want, whose going to do anything about it.

    Let’s just have a chaos filled, all out medieval and barbaric love fest. Do whatever you want, how ever you want and to whom ever you want.

    CF…you got my vote for the platform of lawlessness, anarchy, chaos and bedlam. Who needs laws and people to enforce them in a truly evolved and civilized society.

    Oh….don’t try to walk back on this, since its clear by the expressed views you have shared numerous times you have a very strong and focused disdain, hatred and contempt for the police.

    You own this.

  • Factoid, the word “banning” is where your comment goes in the toilet. I for one am fine to go old school with paper straws (they don’t work very well with malts though). But to have government mandate what restaurants can and can not offer their customers, is one more regulation we don’t need. Oh, and then they make the “offender” the server who is just trying to make a living. Great idea – do we offer bail for that crime?

    Let the public decide if they want plastic or paper.

    • Great point for discussion. Maybe we should keep the plastic straws but dispose of them separately along with other plastic trash. Good luck with that.

  • You’re math retarded CF. The amount of so called actual “police victims” Celeste could pile up stories about here in a year is miniscule compared to a month of victims that look like the suspects that mowed them down on the streets of Chicago, Baltimore, St.Louis you get where I’m headed right? Course to you social justice frauds their murders don’t matter because Black on Black crime is no big deal, we get that. You just can’t beat the facts though. Owning your dimwitted ass is so easy.

  • What is the potential effect on individuals taken into custody by the police arising from domestic disturbance scenarios?
    If someone is accused by their spouse of pushing or striking them during an argument in their home, will that potentially be labeled as a “violent” misdemeanor?
    If charges are filed, will the accused individual face the choice of pleading guilty now or remaining in custody pending trial – even if the original accusation has been recanted?

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