Pretrial Detention/Release

In New Report, Group of Judges Say Risk Assessment and Other Tools Should Replace California’s “Unsafe and Unfair” Cash Bail System

Taylor Walker
Written by Taylor Walker

On Tuesday, a workgroup convened by California Chief Justice Tani Cantil-Sakauye released a report full of recommendations for transforming California’s controversial pretrial detention practices. The recommendations are the result of a yearlong study of the state’s bail system conducted by the workgroup of 11 Superior Court judges and one court executive.

The judges recommend implementing pretrial services that include risk-based pretrial assessment and supervision system in every county.

The risk assessment tool, which calculates the likelihood that a person will return to court or commit a new crime if released, should be based on factors like an individual’s history of failure to appear, prior convictions, current charge(s), and age.

In addition, the report calls for swift decisions—as soon as possible in the pretrial process—regarding whether a person should be detained or released while they await trial.

Victims’ rights should also be integrated into the pretrial system, according to the report. Each victim should be given the opportunity to have a voice in the matter of pretrial release—especially victims of crimes like domestic violence, child abuse, and sexual assault.

The recommendations are the result of the workgroup hearing from more than 40 stakeholders, including bail experts, government agencies, members of the bail industry, and victim and civil rights advocates.

“I support the conclusion that California’s current pretrial system unnecessarily compromises victim and public safety and agree with the recommendation to replace our current system of money bail with one based on a defendant’s risk to the public,” Cantil-Sakauye said. “This report should serve as a framework as we work with the Governor and the Legislature to address these issues that are central to our values and responsibilities of providing fair and equal access to justice for all Californians.”

Earlier in October, Cantil-Sakauye penned a strongly worded essay arguing in favor of bail reform in the Harvard Law Review Blog. Cash bail, which generates $308 million each year in California, produces significant collateral damage for low-income individuals and their families if they don’t somehow find a way to raise the cash necessary to pay that non-refundable fee, Cantil-Sakauye wrote in her essay.

An individual’s employment, housing, financial stability, and family” can all be threatened by just a few days of pretrial detention, the chief justice said.

Cash bail reform has been a hot issue in California this year. Although it garnered support from Governor Jerry Brown and CA Chief Justice Tani Cantil-Sakauye, California’s bail reform bill, SB 10, was put on hold until next year. The governor was reportedly concerned about the costs of SB 10. Brown, Cantil-Sakauye, and the bail reform bill authors announced in August that they would work together to develop cost-effective changes that will promote public safety, and still address the bill’s goals.

In addition, at the beginning of October, the Ninth US Circuit Court of Appeals ruled that immigration judges must consider detained immigrants’ financial circumstances and ability to pay, as well as possible non-monetary alternatives to cash bail, when setting a bond amount.

There are a handful of counties that already use some form of risk assessment in bail decisions, including Humboldt, Imperial, San Francisco, Santa Clara, Santa Cruz, and Ventura.

In LA County, nearly half of jail inmates are being held while they await trial—usually because of an inability to post bail, not because they are a threat to public safety. Between May 2016 and May 2017, defendants in LA County paid approximately $173 million in non-refundable cash to bail bondsmen, and $13.6 million directly to the courts, according to the workgroup’s report.

In March, the LA County Board of Supervisors voted to explore possibilities for reforming the county’s bail and pretrial release system.

“Thousands of Californians who pose no risk to the public are held in jail before trial, while others charged with serious or violent offenses may pose a high risk and can buy their freedom simply by bailing out,” said Judge Brian J. Back, the workgroup’s co-chair and a judge at the Ventura County Superior Court, where risk assessment tools are used. “We think our recommendations, if followed, will help keep Californians safer and preserve scarce jail resources while providing new tools to monitor those released before trial. Importantly, those accused of a crime who pose no risk to the public can keep their jobs, homes and families intact, with profound benefits also to the community at large.”

Margaret Dooley-Sammuli, the ACLU of California’s Criminal Justice & Drug Policy Director, said the ACLU is “very encouraged” by the results of the report.

“As momentum for reforms grows nationwide, now is the perfect time for California to act, Dooley-Sammuli said. “We look forward to working with all three branches of California’s government to ensure that all – not just the wealthy – have access to justice.”

SF Public Defender Jeff Adachi to Challenge Cash Bail Every Time It Is Set

On Wednesday, in response to the report, San Francisco Public Defender Jeff Adachi announced that defenders from his office will file challenges to cash bail in all criminal cases.

Adachi said that members of his office have filed 282 challenges to bail in felonies and misdemeanors since October 10—fourteen times the number of challenges normally filed during the same period.

When public defenders challenge bail, it triggers a hearing that requires a judge to consider alternatives to cash bail … explain (I already wrote a story about this issue)

Adachi says the change was also inspired by the case of Kenneth Humphrey, an indigent 64-year-old San Francisco man accused of a low-level crime that was stuck behind bars with bail set at an unattainable $350,000.

In this case, according to Civil Rights Corps attorney Katherine Hubbard, the prosecutor asked for an extremely high bail amount for a man charged with low-level felonies, presuming that the defendant could not pay.

The petition argued that the court did not conduct an inquiry into whether the defendant could pay the bail amount, or consider non-monetary alternatives to cash bail.

According to Hubbard, it’s extremely common for courts to “evade this constitutional process” required to detain someone on the basis of public safety. “I don’t know if the detention hearings are actually happening anywhere,” Hubbard told WitnessLA.

Image: Chief Justice Tani G. Cantil-Sakauye Appoints Pretrial Detention Reform Workgroup

1 Comment

  • Classic bureaucratic hubris. Replace a system that has been working reasonably well for hundreds of years and replace it with a top down system that imagines it can predict human behavior from afar. At least bail relies on people’s self interest, this nonsense relies on the wisdom of people who imagine they can predict the future. Of course Witness LA is all for it.

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