California’s Bail Reform Law Stymied by Big Business
by Ed Lyon
In August 2018, California’s legislature passed Senate Bill 10, designed to reform the state’s cash bail system. Cash bail is commonly associated by oppression of financially poor arrestees as a means to keep them incarcerated until they are tried, which far too often results in coerced guilty pleas and harsher sentences. SB 10 was originally written with the intent to eliminate cash bail entirely. Arraigning courts would be required to operate an assessment system of release risk and monitoring of the accused but with the ability to remand arrestees to pretrial custody if they are found to be too dangerous to be free.
A similar law previously passed in New Jersey virtually crippled its bail bond industry and by extension insurance companies that indemnify the bail-bond agencies. Driven by fear of fiscal losses, these two big business interests began a drive to accumulate enough verifiable citizens’ signatures to call for a referendum of California’s SB 10.
These two business interests are not alone in their dissatisfaction with SB 10. Changes were made to SB 10 from its original form, which has soured the initial enthusiasm expressed by early supporters of the law. Differing from New Jersey’s platform, which required prosecutors to present proof of an arrestee’s future dangerousness upon their release, California’s judges have nearly unfettered discretion to determine pretrial detentions and releases.
Until the ultimate fate of SB 10 is determined in California’s 2020 general election, its counties and cities are free to implement bail-reform systems of their own. Compton is trying a program where cash bail is reduced or waived entirely based on an arrestee’s willingness to participate in diversionary programs like drug and/or alcohol treatment centers or programs prior to trial.
Perhaps, in this case, a referendum might be a good idea as it creates an opportunity to return SB 10 to its original form. If SB 10 is defeated, it will give the original supporters another chance to pass bail reform through the legislature similar to the original SB 10. With California’s voters’ track record of truly meaningful criminal justice reform over the past few years, observers are predicting SB 10 will be approved at the 2020 general election. Hopefully it will be the bill’s original construction, similar to New Jersey’s successful format.
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