“Excessive bail will not be required, or excessive fines imposed, or cruel and unusual punishment inflicted.” [Eighth Amendment to the Constitution of the United States, ratified on December 15, 1791] This was reiterated in Article 1, Section 12 of the 1872 California Constitution and amended in November 8, 1994 to provide that a person shall be released on bail except for capital crimes and certain felony offenses under specified circumstances.
The California Constitution states that excessive bail may not be required, that in establishing the bail amount, the court shall consider the seriousness of the offense charged, defendant’s prior criminal record, the probability of defendant’s appearance at the trial or any other factors that would be relevant. The public safety is the primary consideration and that release of the defendant on his/her own recognizance (OR) is at the court’s discretion.
It also mandates that an individual accused of a serious felony may be release on bail without a court hearing after due process has been provided to both the defendant and the prosecution. Moreover, if released OR, the court must state on the record, in open court, the reasons for the release and included in the minute order.
The bail reform bill was based on the premise that poor defendants were less able to pay for their bail and thus, unjustifiably held in custody pending trial simply because they could not afford the bill. The demand for change has now created “tools” which will decide if the defendant can be released into the public pending trial or sentencing.
New Jersey, New Mexico, Colorado and the District of Columbia have adopted such systems. It is a presumption that any defendant will be released on “OR,” and that pretrial “public safety assessment scores” from a computer algorithm will solve public safety and court appearance fears of prosecutors, law enforcement officers, and the public.
There is a “heated” debate whether such reform actually benefits the intended defendants. It is to be noted that judges, not prosecuting attorneys, bureaucrats, or computers have historically set bail amounts during arraignment or thereafter. Under SB10, local courts will create their own evaluation system for deciding who can be safely released while awaiting trial or sentencing. While ankle monitors or other conditions could be required for release, those conditions must be nonmonetary.
People accused of nonviolent misdemeanors would be released within 12 hours after being booked. There are exceptions: those with recent serious or violent felony convictions, multiple failures to appear or allegations involving domestic violence would not qualify. For all others, the local court would assess who is low, moderate or high risk of re-offending and/or fleeing.
Several groups that once stood behind SB10 says the bill will simply result in more people accused of crimes being detained. The California Public Defenders Association, American Civil Liberties Union are among the groups that removed their support of the bill. “This current broken system has created such unfairness, such injustice, said Assemblyman Rob Banta, D-Alameda. “It has also failed to keep us safer, because it’s not based on safety. It’s not based on one’s risk. It’s based on wealth, an arbitrary and irrelevant factor.”
It gives tremendous discretion to judges to decide who to detain, and experience shows that this discretion is likely to be used in a way that over-predicts dangerousness and in a racially discriminatory manner,” said Erwin Chemerinsky, dean at the U.C. Berkeley School of Law. “Eliminating money bail is essential, but this is the wrong way to do it.
How this law will be implemented in the coming years should be scrutinized closely.
Gina Clayton-Johnson, executive director of Essie Justice group, an organization representing women with incarcerated loved ones, said lawmakers should take note that her group opposed the revised SB10 after pursuing the bill for so long. “We know what it means to end the bail industry. So, you take it from us when we say this is a bad deal.”
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