Some (Seemingly) Fantastic Criminal Justice Reform: California Eliminates Cash Bail
California governor Jerry Brown has signed the bill that Alexei Koseff reports on in the Sac Bee:
Advocates of abolishing bail contend that too many Californians remain stuck in custody because they cannot afford to bail out, effectively creating an unequal system of justice based on wealth. Counties currently determine their own bail schedule by crime, and offenders can secure their release by paying the entire amount, to be returned at the conclusion of their case, or applying for a surety bond through companies that charge a 10 percent fee.Senate Bill 10 would instead order the California Judicial Council, which oversees the state court system, to develop standardized "risk assessment tools." Local agencies would use the system to evaluate any individual arrested on felony charges for their likelihood of returning for court hearings and their chances of rearrest, while most individuals arrested for misdemeanors would be released within 12 hours without assessment.
A person whose risk to public safety and risk of failure to appear is determined to be "low" would be released with the least restrictive nonmonetary conditions possible. "Medium-risk" individuals could be released or held depending on local standards. "High-risk" individuals would remain in custody until their arraignment, as would anyone who has committed certain sex crimes or violent felonies, is arrested for driving under the influence for the third time in less than 10 years, is already under supervision by the courts, or has violated any conditions of pretrial release in the previous five years.
The measure gives judges discretion during the arraignment hearing to decide whether to release an individual and on what conditions. It also introduces a process for the prosecution to file for "preventive detention," blocking the defendant's release pending a trial, if they believe there are no conditions that would ensure public safety or their appearance in court.
"With money bail, the door to the jailhouse swings open and shut based on the amount of money in your pocket, and that's wrong," said Assemblyman Rob Bonta, an Alameda Democrat who helped craft the legislation. "We believe that due process and fairness and justice and safety require that each individual be individually assessed."
This measure "gives judges discretion."
Hmmm...
The stink of unintended consequences coming up for you? It was for me.
And, in fact, it was for Steven Greenhut, who writes at Reason.com:
S.B. 10 was designed to largely eliminate the money bail system and replace it with a judicial process for determining release. But new provisions are so problematic that many of its key backers, including the ACLU of California, have not only withdrawn support--but actively urged a veto."We oppose the bill because it seeks to replace the current deeply-flawed system with an overly broad presumption of preventative detention," the group said in a statement.
If the new rules make it more likely that the accused will remain in jail, then what's the purpose? Indeed, bail reform has become one hot mess, with the latest evidence suggesting that both sides might be dizzyingly far off of the mark on what they say the reform might accomplish. The goal, again, is to assure that non-dangerous people can go home and have a decent shot at due process as their case winds its way through the system.
But a June report from Prince George's County, Md., suggests that Maryland's bail-reform experiment has resulted in the opposite of its intention. Although "cash bails have decreased, judges have opted to hold more people without bond instead of releasing them on their own recognizance," according to a Washington Post review of the findings. It's not an outlier, either, as "the trends found in the June report track similar findings from studies conducted by Princeton University and the Maryland Office of the Public Defender as well as anecdotal observations from local public defenders."
Perhaps it's the law of unintended consequences. Backers of bail reform, including this writer, believe that it's a good way to base release on risk assessments rather than a person's cash reserves or family connections. It also offers a potential for significant public cost savings. Although the bail system is a form of private insurance, it's costlier to keep people in a government-funded jail than it is to have them at home. Perhaps we didn't consider the possibility that judges would routinely err on the side of incarceration. It makes sense. What judge (especially an elected one) wants to be the one that mistakenly released a violent criminal?
Exactly.
Not just nail reform, we need an overhaul of the entire justice system. Why do we have so many laws that are intent on incarcerating people? Prison and jail should be limited to those who murder, rape and cause great bodily harm. Securities fraud? That's worth locking someone up like they killed, raped or caused great bodily harm? (And yes, I'm aware there should be some exceptions, like arson maybe, but I just want to make this easy.)
Fayd at August 31, 2018 3:27 AM
Not nail reform, bail reform. Ugh.
Fayd at August 31, 2018 3:28 AM
Why do we have so many laws that are intent on incarcerating people?
Revenue. Also, it allows the powers that be to cause you problems just because they don't like you. If you're an otherwise law abiding citizen, having multiple avenues of nailing (SWIDT?) you for some obscure or rarely enforced infraction will do just fine.
For instance, my city adopted a noise ordinance that's so broad that if they feel like it they could write a citation if you were so bold as to mow your lawn during daylight hours.
They swore they wouldn't do such a thing, but that's the point: they have a weapon to inflict pain and cost on political malcontents.
I R A Darth Aggie at August 31, 2018 6:14 AM
"Senate Bill 10 would instead order the California Judicial Council, which oversees the state court system, to develop standardized "risk assessment tools."
So, some contractor will be given the assignment to develop a system which purports to do this, using either standard statistical tools or machine-learning algorithms. It sounds like judges will have the power to override this, but over time, the System will be treated more and more like a godlike authority.
David Foster at August 31, 2018 7:08 AM
Because people keep saying, "there oughta be a law."
Conan the Grammarian at August 31, 2018 7:16 AM
The current system helps assure that people don't vanish once released. This is done with the very flawed bail-bond system, where bail-bondsmen can go find people and bring them in if they don't show up. Surprisingly, these guys do a better job than the police at finding people...but are also not watched closely and end up killing people sometimes. This is also a fairly low-cost system because the tax-payers don't pay for finding people and the "risk assessment" can be fairly loose (how big the bond) and still work. The proposed risk assessment is expensive if done right and risky if done wrong and that is why judges keep more people behind bars.
The real problem is poor esp young men who may be kept behind bars even in the current system for years just awaiting trial--in the mean time they've lost their job, their girlfriend, their car. It is awful but the new system will also keep them in jail it seems.
cc at August 31, 2018 2:05 PM
To borrow the old saying about democracy, the cash bail system is the second-worst system for ensuring that the accused shows up for trial; every other system ever invented is tied for worst. The bail system works (when it works) by making it expensive and rather risky for the accused to evade trial. There doesn't seem to be any other way to accomplish that. Ankle monitor systems are often proposed as an alternative. However, a lot of the effectiveness of ankle monitors comes down to cost. Let's look at some of the considerations with that:
1. It is possible to make an ankle monitor that is nearly impossible to remove without the key. It's also quite expensive. Most jurisdictions don't buy those. They buy cheaper ones with rubber straps that can be cut with ordinary scissors. Yes, the monitor will send a signal when the strap is cut. The halfway-smart criminal will have an escape planned beforehand; by the time the parole officer gets around to coming around to check on it, the escapee is already two states over.
1a. Some states have laws requiring that ankle monitors be easy for EMTs to remove with ordinary tools. If the EMTs can do it, the wearer can do it.
2. There are ankle monitors that have GPS receivers and continuously transmit where the wearer is. A receiving system can show the parole officer where the wearer is, and can issue an alert if the wearer goes somewhere outside of their allowed perimeter. You guessed it; these are expensive. Most jurisdictions buy ones that are only monitored by a receiver in the wearer's house. When the wearer is out of the house, the system has no idea where the wearer is. This is acceptable for a wearer who is under house arrest, but normally such systems are used for wearers who are allowed to keep going to their jobs, and so out of the house during set hours. The system will send an alert if the wearer has not returned home by curfew time. But by that time, the halfway-smart escapee is in Mexico.
3. A lot of the systems seem to be particularly bad about bombarding supervisory officers with false and irrelevant alarms. I'm looking at a video from a TV station in Denver (here), which says that their system issues about 4000 alarms a month. Officers are overwhelmed; they try to prioritize which ones they investigate, but a lot of things slip through the cracks while the officer makes a run to check out a non-escapee whose monitor battery is starting to run down.
What it comes down to is that if the accused who desires to flee can defeat the monitoring system, then the cost to them to flee is nil. And the cost to the state to keep the system going is high, if they do it right. If they do it wrong, there are many escapees, and as soon as one commits a violent felony, then (understandable) public pressure to crack down winds up defeating the whole system, and everyone is back to square one.
Cousin Dave at August 31, 2018 9:04 PM
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