Updated 6:24 p.m.
A years-long quest to end cash bail in California is heading for a showdown in the Legislature as soon as early next week after the bill's author released closely guarded details Thursday.
As newly amended by an Assembly committee and first reported by CapRadio, SB 10 by Sen. Bob Hertzberg (D-Van Nuys) would instead require courts to base pretrial release decisions on inmates’ risks to the public and their flight risks.
Hertzberg said California would become the first state in the union to end cash bail altogether. Washington, D.C., he said, has also done so. Other states have partially but not fully eliminated it.
“Instead of determining how much money you have in your wallet, you have a judge take a look at the facts and determine whether somebody’s a flight risk or a public safety risk,” Hertzberg said Thursday on CapRadio’s Insight with Beth Ruyak.
Listen to CapRadio Reporter Ben Adler and Sen. Bob Hertzberg's full conversation with Insight's Beth Ruyak. Sen. Hertzberg's comments begin at 6:00:
The California Bail Agents Association, meanwhile, branded SB 10 “the Mass Incarceration Act of 2018” and called it “bail reform Donald Trump would love.”
“This bill does nothing to allow people in poverty or of color to get out of detention easier,” lobbyist David Quintana texted. “It simply detains everyone.”
Significantly, Thursday’s developments drew immediate support from the Judicial Council, the administrative body that governs California’s court system. “SB 10 appropriately balances public safety, fairness, and the rights of defendants and victims,” the council’s administrative director wrote in a letter to Hertzberg.
Gov. Jerry Brown’s office said in a statement that it “is open to legislation that reforms California’s pre-trial system in a cost-effective manner that protects public safety and preserves the rights of the accused.”
The governor’s office has been actively involved in negotiations after Brown said last year that “inequities exist in California’s bail system.”
If the bill is approved, California’s existing cash bail system would end October 1, 2019. Training on the new system would begin the prior October.
In addition to ending cash bail, the measure would eliminate all monetary conditions for pretrial release, such as charging defendants for ankle monitors. Such fees might otherwise run into the thousands of dollars.
Instead, the plan would adopt a risk-based system based on California Chief Justice Tani Cantil-Sakauye's Pretrial Detention Workgroup recommendations.
Individuals charged with misdemeanors would be required to be booked and released within 12 hours of arrest, except in cases involving domestic violence, stalking and other serious crimes.
For defendants charged with felonies:
"Low risk" defendants would be released within 24 hours of booking on own recognizance or supervised own recognizance, with some exceptions.
"Medium risk" defendants would go through a pre-trial assessment process that can be set by each county's court system. Releases would be based upon a defendant's flight risk and danger to the community.
“High risk" defendants would be arraigned before a judge, who would decide if it's possible to safely release them without a risk to public safety or flight. Otherwise, high risk defendants could be held in custody until trial.
Each county's court system would be required to establish its own pretrial assessment services. In most counties, courts are expected to task county probation departments with this function.
The proposal Hertzberg moved forward has split the coalition of progressive groups that had been sponsoring the bail legislation.
Jessica Bartholow with the Western Center for Law and Poverty called SB 10 a “game changer” that “will end the intent and deliberative use of wealth as a measure of whether or not a person is (to) be released following an arrest.”
It also drew support from influential labor unions. “We want to push for a system that is actually one that assesses the public safety risk, and not one that allows somebody with deep pockets and a whole lot of money to get out regardless of the crime he or she committed,” said SEIU California’s Tia Orr.
But the American Civil Liberties Union withdrew its sponsorship and support. While praising Hertzberg for the “remarkable achievement” of eliminating cash bail, it said his measure does not go far enough.
“Any model must include data collection that allows independent analysis to identify racial bias in the system, supports the use of independent pretrial service agencies recognized as the best practice in pretrial justice, and ensures stronger due process protections for all Californians, no matter where they live,” the ACLU’s Natasha Minsker said in a statement.
An Assembly budget committee report released Wednesday estimated a $200 million annual cost for the new pretrial release system — a price tag opponents say is such a low-ball figure that it’s farcical. Around $15 million for start-up costs in the current fiscal year is expected to be approved in a new state budget bill later this month.
SB 10 must still pass final votes in both the Assembly and Senate before advancing to the governor’s desk.
The tougher battle will almost certainly be in the Assembly, which rejected a bail reform bill by Asm. Rob Bonta (D-Alameda) in Spring 2017 — the same week SB 10 passed the Senate.
Asm. Jim Cooper (D-Elk Grove), a former Sacramento County Sheriff’s deputy and jail commander, criticized Hertzberg’s proposal as a “bad bill” that will actually increase the number of defendants held in custody.
“This is amateur hour,” Cooper said. “You have a lot of folks that, ‘it sounds great, let’s do it.’ But it’s just wild guesses in how they’re legislating this.”
Cooper noted that under the current system judges set bail, which he argued is why bail is so high. Under the new system, he said, judges will continue to decide which defendants are released and which ones remain in custody.
“Let’s be honest. No judge wants to release someone that’s gonna go out and commit a crime,” Cooper said. "And they’re gonna err on the side of safety.”
Editor’s Note: An earlier version of this story based on information provided by Hertzberg’s office said California’s existing cash bail system would be replaced by the new pretrial release system on January 1, 2020. In fact, under his proposal, that effective date is actually October 1, 2019.