By Eric Gelber
Legislation enacted in 2018 (SB 10 (Hertzberg)) repealed existing laws regarding bail and required most people arrested for misdemeanors to be released within 12 hours (except people charged with domestic violence, violating a protective order, or stalking, and people who have a recent criminal history, a history of violence, or of violating conditions of pretrial release). For those charged with felonies, or who fall into one of the exceptions, SB 10 eliminated cash bail in most instances subject to a pretrial system that relies on judicial discretion and risk assessment tools based on algorithms to determine whether to detain or release someone and, if released, under what conditions.
SB 10 was signed into law and would have been implemented but for a bail bond industry ballot measure—Proposition 25—on the November 3, 2020 ballot that repealed the provisions of the bill. Although Proposition 25 was an effort to repeal SB 10, it was confusingly written such that a “Yes” vote would uphold SB 10 and a “No” vote would repeal the contested legislation, thereby keeping in place the use of cash bail for detained suspects awaiting trial. Despite polling showing a significant majority of Californians oppose the money bail system, the bail industry succeeded: The No vote prevailed with 56.41% of the vote, thereby rejecting the reforms enacted by SB 10.
Two identical new bills have been jointly introduced in the current legislative session that would significantly restrict the use of cash bail but would take a more limited and straightforward approach than the risk assessment method relied on by SB 10: AB 329 (Bonta) and SB 262 (Hertzberg and Skinner).
What problem/issue would the bill address?
It is generally acknowledged that the bail system has a disparate, negative impact on communities of color and those who come from the lower end of the socio-economic spectrum. Those who are 
released on bail while awaiting disposition of a criminal case are, among other advantages, able to maintain employment, housing, child custody, and other aspects of their lives. Those who don’t have the funds to post bail are forced to remain incarcerated, and more likely to plead guilty in order to get out of custody.
Senator Bob Hertzberg, co-author of SB 262, has stated that “Fundamental fairness and basic human decency demands we make decisions about who stays in jail on the facts of the case and the risk to the public, not the balance of someone’s bank account.”
Additionally, Senator Nancy Skinner, co-author of SB 262, notes that “Our current money bail system allows wealthy people to pos t bail and go home, while low-income people must remain behind bars. This is true regardless of the type of crime committed or the likelihood of being convicted. SB 262 and AB 329 will help right these wrongs.”
Finally, Assemblymember Rob Bonta (author of AB 329) states, “The jailhouse door should not swing open and closed based on how much money someone has. There is no disputing the present system wrongly treats people who are rich and guilty better than those who are poor and innocent. The status quo is indefensible and disproportionately impacts low-income Californians and communities of color. Money bail epitomizes unequal justice, and we must continue our fight for equal justice under the law.”
What would the bills do?
SB 262/AB 329 would not eliminate money bail. Instead, the bills would set bail at zero dollars for misdemeanors and most felony charges. For all other crimes the bills would require the California Judicial Council to create a uniform bail schedule with standard bail amounts statewide. (Currently, each county sets a bail schedule.) Exceptions to zero bail include, among others, serious or violent felonies, violations of specified protective orders, battery against a spouse, sex offenses, and driving under the influence.
The bills would also require the court to order a return of money or property paid to a bail bond licensee, by contract entered into on or after January 1, 2022, to obtain bail if the action against the person is dismissed, no charges are filed within 60 days of arrest, or the person has made all court appearances during the pendency of the action or proceeding. The bills would authorize the bail bond licensee to retain a surcharge not to exceed 5% of the amount paid.
As noted, SB 262/AB 329 would not eliminate bail entirely—e.g., for the crimes delineated in the 13 exceptions listed in the bills. However, the bills state that it is the intent of the Legislature to enact further changes to current law to ensure that a defendant is not detained pending trial simply due to an inability to pay the amount of bail in the statewide schedule set as provided in the bills.
Comments
Not only does the cash bail system disadvantage those who are too poor to post bail, which has a negative impact on communities of color, but the system results in California jails being crowded with individuals who are in jail while they are facing criminal charges. Whole families often suffer as they take on long-term debt to purchase the safety and freedom of a family member.
A 2015 report issued by the Public Policy Institute (PPIC) of California noted that, as of September 2014, 62% of jail beds were filled with inmates awaiting either trial or sentencing. The PPIC report further noted that California uses pretrial detention more than the rest of the country; however, the state’s high rates of pretrial detention have not been associated with lower rates of failures to appear or lower levels of felony rearrests.
In support of SB 10, the Ella Baker Center for Human Rights (a co-sponsor of the bill) stated that “pre-trial detention as a result of inability to pay bail can also result in loss of employment, housing, child custody rights, etc. Black men are not only less likely to be released on their own recognizance, their bail amounts are also 35% higher on average than white men. Most alarmingly, nearly 80% of all jail deaths in California occur among people who are detained pre-trial.”
Although the ACLU was initially a co-sponsor of SB 10, it ended up opposing the bill as it was later amended (and supporting its repeal through Proposition 25) because the algorithms that the risk assessment tools would utilize were assertedly not scientific and objective and were racially and socioeconomically biased. SB 262/AB 329 takes a different approach that does not rely on algorithms and risk assessment tools.
Opposition to SB 10 included the California District Attorneys Association (CDAA). CDAA argued, for example, that “SB 10 focuses on the costs of incarceration and hardships to the defendant caused by pretrial detention, but wholesale pretrial release has many other costs. When a defendant fails to appear, there is no bail agent with motivation to go find the defendant. The police have no additional resources to find and arrest defendants who fail to appear …” Other grounds for opposition addressed features of SB 10 that are not included in SB 262/AB 329.
While some of the same arguments in support and opposition to SB 10 would also apply to SB 262/AB 329, at this point in the legislative process most organizations have not yet weighed in. Due to the significant differences in approach taken by the new bills as compared to SB 10, many of the prior arguments, particularly those of opponents, will not apply.
As a side note, the California Supreme Court may have something to say about the constitutionality of cash bail in In re Humphrey in which it heard oral arguments on January 5th. (See Vanguard article of January 6, 2021.) The Court could determine that cash bail is unconstitutional on equal protection grounds because when charged with the same crime the rich and the poor should be equal before the law. Cash bail treats similarly situated criminal defendants differently depending on how rich they are. Conditions of release could involve safeguards other than cash bail. Suggested alternatives include, for example, court-ordered supervision or admission into treatment programs (e.g., The California Supreme Court can fix our broken bail system, Nicholas Cotter and David A. Carrillo, January 06, 2021).
SB 262 is currently scheduled to be heard in the Senate Public Safety Committee on March 23rd. AB 329 has been referred to the Assembly Public Safety Committee but, as of this writing, a hearing date has not been set.
Eric Gelber, now retired, is a 1980 graduate of UC Davis School of Law (King Hall). He has nearly four decades of experience monitoring, analyzing, and crafting legislation through positions as a disability rights attorney, Chief Consultant with the Assembly Human Services Committee, and Legislative Director of the California Department of Developmental Services.
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