California’s historic overhaul of cash bail is now on hold, pending a 2020 referendum

Reporting from Sacramento —  A landmark law to abolish California’s money bail system has been put on hold until voters decide its fate in November 2020 after elections officials on Wednesday certified a statewide referendum backed by a coalition of bail industry associations.

Elections officials verified more than 400,000 signatures to qualify the referendum for the ballot, setting the stage for a campaign battle between bail companies fighting for their survival and state leaders who have pledged to protect indigent criminal defendants from unjust incarceration and fees.

Senate Bill 10, signed by former Gov. Jerry Brown last August, was slated to go into effect this fall. It would give judges greater discretion to decide who should remain in jail ahead of trial and eliminate the payment of money as a condition of release, a practice that critics say traps defendants in cycles of debt, even if they have not been convicted of a crime.

Bail groups fought the legislation since it was first proposed three years ago, saying it would result in the release of violent offenders to the streets and decimate a $2-billion national industry, including 3,200 bail agents registered in the state. A day after Brown signed the law, a national coalition of bail agency groups launched its referendum drive, raising about $3 million and collecting more than enough signatures to qualify the measure in just two months.

“We’re grateful to the hundreds of thousands of voters who signed petitions so quickly to qualify this referendum for the ballot,” Cesar E. McGuire, director of Bail Hotline Bail Bonds, said in a statement. “In passing this misguided bill, the Legislature ignored not only public safety and justice, but a fundamental of the criminal justice system — defendants must appear at trial for justice to be served.”

Bail companies will be able to continue doing business as usual until voters weigh whether to overturn the law. But court and government officials have pledged to defend the reforms and counter that the bail industry’s efforts will not stop momentum for changes to bail and other pretrial systems taking place in courts across the country.

Sen. Bob Hertzberg (D-Van Nuys), who coauthored the legislation, said he was confident it would remain “the law of the land.”

“We know that private equity firms poured hundreds of thousands of dollars into this campaign — not to protect public safety, or decrease the number of innocent people in jail, but to protect their bottom line,” he said in a statement.

In California, state Supreme Court cases have significantly altered the way judges assign bail, with rulings to increase equal access to justice and prevent counties from burdening the poor.

At least 11 counties are employing roughly 40 different pilot pretrial programs to reduce the number of people cycling in and out of jail, and as many as 49 California counties are using risk assessment tools, or tech analyses that help courts determine which defendants are fit for release and which pose a risk to public safety or of not coming back to court.

California Chief Justice Tani Cantil-Sakauye, who helped craft the state’s bail law, has assembled a working group to evaluate pretrial programs and make recommendations on next steps now that the law is on hold. Gov. Gavin Newsom earmarked $75 million in his budget proposal last week for the Judicial Council, which is led by the chief justice and sets court rules, to give to counties over the next two years to implement and evaluate pretrial efforts in up to 10 courts.

State lawmakers have also turned an eye toward new legislation. On the first day of the 2019 legislative session, Hertzberg introduced a proposal that would require counties to report how they use the risk assessment tools in an effort to prevent improper and biased conclusions.

But as the bail industry’s campaign against the law gears up, some criminal justice and civil rights groups, including the American Civil Liberties Union of Northern California, could find themselves in a difficult position: They supported the end of the cash bail system but moved to oppose the new law amid fears that it would grant judges too much power to put more people behind bars.

They have since sought to distance themselves from the bail industry’s referendum efforts, and are instead pushing for new court rules from the Judicial Council to prevent racial bias in the use of risk assessment tools.

Under the new law, only people charged with certain low-level, nonviolent misdemeanors — a list of charges that can be further narrowed by county — would be eligible for automatic release within 12 hours of being booked into jail.

All others arrested would have to undergo the risk analysis, a procedure that would sort defendants based on criminal history and other criteria into low-, medium- or high-risk categories. Courts would be required to release low-level defendants without assigning bail, pending a hearing. Pretrial services offices would decide whether to hold or release medium-risk offenders. Judges would have control over high-risk offenders and all prisoners in the system.

Human Rights Watch senior researcher John Raphling, whose organization supports a bail overhaul but opposed the final legislation signed by Brown, said his and other groups will work on proposing a different pretrial model in the Legislature that ends money bail and requires the release of more people based on the presumption of innocence.

“We will not be joining the bail industry’s efforts, but we are not fighting for SB 10,” he said. “We have a different vision of how to reform the pretrial detention system.”

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