Posted on by Californiacontrarian

A Radical Departure

“This might not be the perfect bill. This may not go as far as people want . . . But we need to do something!”

This sounds suspiciously like the infamous Obamacare justification line (“once you pass the bill, you’ll know what’s in it”). Recall that Obamacare that was passed solely by Democrats, who at that time felt like “something needed to be done,” and so they rushed and passed the significantly flawed A.C.A. This is not the A.C.A. all over again, but it is going to be passed by predominately, if not solely, California Democrats. I am talking here about California Senate Bill 10, that just passed out of the state Assembly and is headed to the state Senate for final approval.

For those not in the know, California Senate Bill 10 is California’s version of bail reform.
The proponents of SB10 say that it is not just about bail — the refundable cash or property that a defendant traditionally deposited with the court as a guarantee that he or she would show up for trial, or the unrefundable percentage that modern-day defendants pay to bail agents for putting up the full amount. They proclaim that it is more about justice between arrest and trial, and the time-honored American premise that even a person accused of a serious crime is to be treated as innocent until proven guilty.
The basic conundrum is that the rich can always post bail, while the poor often cannot, and the consequences of not being able to post bail are much more dramatic for the poor whose lives are dramatically effected if they need to stay in jail until their trial. They lose their jobs if they do not show up, and they often lose their home because they cannot pay the rent or the mortgage. This occurs whether or not they are ultimately found guilty or innocent. The proponents of SB 10 say that the presumption of innocence should translate into a presumption that people who are arrested and arraigned should then be set free to return to their homes, families and jobs and be in the best position to prepare their defense.
Senate Bill 10 will mandate the use of risk assessments in pretrial release decisions. In theory these assessments can allow for more defendants to be released pretrial while maintaining public safety. More specifically these risk assessments are questionnaires that gather information about a defendant’s criminal and/or social history and use this information to output a risk score. Pretrial risk assessments intend to predict what a defendant would do if released before their trial: specifically, whether they will fail to appear in court and whether they are a risk to public safety.
My initial reaction to SB10 was that it was a bad bill, and it would just return criminals to the streets. However after I thought about it for awhile, I thought that the concept was good, but the trick would be putting that concept into practice.
My opinion was tempered by the fact that the A.C.L.U. was for SB10. However here in the last few  days, because of amendments, the A.C.L.U. changed its opinion, and came out against it . . . now I am even more sure that SB10 is a good idea.
If it passes and is signed by the governor, there are few things that almost certainly will occur. Something heinous will be done by someone who passed the pretrial risk assessment, and was released without bail prior to his/her trial. Likewise certain judges will be castigated because they are not releasing a high enough percentage of those who appear before them with marginal pretrial risk assessments.
Oftentimes with bills written and moved through the system in haste, there are flaws, and SB10 has certainly been pushed through the legislature with alarming alacrity. I would propose that such a radical departure (no bail) from long established norms (bail for everyone charged) is not wise. My suggestion would be to pass SB10, but with a trial period of two or three years during which everyone will be able to evaluate if SB10 is working, or if its flaws far outweigh its benefits. If in fact after two or three years, it turns out to be all that it is advertised to be, then it could be made permanent.

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