CA Bail Elimination Experiment to Begin- Local Officials Comment

By George Miller

Hundreds of years of use of the cash bail system for defendants is about to be ended in California by legislative action.

 

The system of posting bail for release for criminal charges pending trial dates back to at least 1677, with the English Habeas Corpus Act. The English Bill of Rights restricted excessive bail. The US adopted The Judiciary Act of 1789, which  defined bailable offenses. There is even a a protection against excessive bail in the 8th Amendment of the Constitution (above), although it is imprecise, while the 6th Amendment allows defendants to demand bail for bailable offenses. Subsequent legislation over the years  attempted to reform the bail system, especially to avoid unnecessary and unjust incarceration.

But recently, the California legislature decided to make a radical break from that, to end 331 years of Anglo-American practice, at least in the state, when they passed and Governor Brown signed into law actually eliminating the bail system-  (SB 10Pretrial release or detention: pretrial services, Bob Hertzberg, (D, Van Nuys).

It was a lopsided, highly partisan vote in the Senate 26-12, with only one Republican, Senator Moorlach, voting for it and Berryhill listed as “NV” (Not Voting).  It was more contested in the Assembly 42-31, with 7 NV (no votes) and 7 Democrats voting against it.  The only area no vote was by Republican Senator Wilk and Assemblyman Dante Acosta. Democrats Jackson, Limon, Irwin and Stern all voted for it.

Governor Brown said it was all about treating both the rich and poor fairly. Starting on October 1, 2019, it would eliminate cash bail to release people charged with crimes and would employ a system to assess risk of likeliness of flight and future offenses. Its stated purpose was to make it easier on low income people who lack the resources while maintaining public safety via risk management on flight and additional offenses by prisoner releases.

Selected Bill Summary Portions (you can read details HERE):

Bill intent: It is the intent of the Legislature by enacting this measure to permit preventive detention of pretrial defendants only in a manner that is consistent with the United States Constitution, as interpreted by the United States Supreme Court, and only to the extent permitted by the California Constitution as interpreted by the California courts of review.

27771. (a) The chief probation officer shall perform the duties and discharge the obligations imposed on the office by law or by order of the superior court …..
This bill would require, commencing October 1, 2019, persons arrested and detained to be subject to a pretrial risk assessment conducted by Pretrial Assessment Services, which the bill would define as an entity, division, or program that is assigned the responsibility to assess the risk level of persons charged with the commission of a crime, report the results of the risk determination to the court, and make recommendations for conditions of release of individuals pending adjudication of their criminal case. (Author’s note: we were informed by multiple knowledgeable people that it would usually be the Probation Department). The bill would require the courts to establish pretrial assessment services, and would authorize the services to be performed by court employees or through a contract with a local public agency, as specified. The bill would require, if no local agency will agree to perform the pretrial assessments, and if the court elects not to perform the assessments, that the court may contract with a new local pretrial assessment services agency established specifically to perform the role.

Many people are unhappy with the bill for being too lax. For example, Mark Klassen, writing in the Sacramento Bee opined:

California’s bail system needs thoughtful, structural reform, not an out of control chainsaw approach that disregards public safety. As currently written, SB 10 only provides consideration of information about the current offense, not a defendant’s criminal history. With exceptions, it will allow “recommendations on conditions of release for the person immediately upon booking.” In other words, SB 10 will create a catch and release system that allows dangerous criminals back onto the street too quickly, making it impossible to facilitate victim guaranteed rights and protections, as it endangers innocent citizens.

That is marked contrast to the ACLU, which initially supported the bill, until it was amended to tighten it up. Now they are actually opposed to it.

Bail bondsmen are predictably opposed to it, since it would nuke their businesses in California and possibly help the change spread more widely. But some of them have claimed that it would result in de facto delegation of jail release decisions to private firms (since probation resources would be lacking) , at least one closely linked to the bill’s author, State Senator Bob Hertzberg. The bail bond industry has started a repeal voter initiative.

We asked some key local players what they thought ….

Ventura County District Attorney Greg Totten

Ventura County District Attorney Greg Totten

DA Totten replied quickly to our request for an interview and we spoke soon thereafter. He obviously has spent a lot of time and thought on the bill and its implications. Right off he said he did NOT support the bill and saw numerous risks, but was not actively opposing it either. He also said that substantial improvements had been made over initial versions of the bill, including things done recently. He also stated that SB1054 is a “fix” to it in the pipeline now, but it still doesn’t satisfy him.

When I told him that AD44 Rep. Jacqui Irwin had mentioned to me that he was a supporter of the bill, he hemmed and hawed a bit, saying that he didn’t want to contradict anything she said about that. He added that she wanted to know if it was OK to vote for it with the improvements and said that it had been improved considerably. He left it at that.

He said that that the DA’s association initially opposed it and that most DA’s believe the bail system is needed.

Totten said that the CA Judicial Council would be responsible for developing risk assessment guidelines for prisoner release He is very concerned about the 12 hour release deadline, since people could be dumped on the street in the middle of the night or without adequate time to prepare charges or do proper risk assessment. He said that some cannot take care of themselves and need post-release services. Nearly everyone we spoke to had that concern. He said that initial versions of the bill would have them release suspects for at least some more serious offenses, even sex crimes. He is also concerned that the final bill permits three failures to appear before cracking down.

He added that most of the responsibility for running the system and doing the risk analyses would fall upon the Pre-Trial Services- Probation section for low and medium risk cases, but judges would be involved in more serious crimes. He also said that the devil is in the details and that the risk guidelines and how they were administered would really determine if risk to the public was adversely affected by injudicious release or would people tend to be detained more. He said “how it works out is to be determined.” Release would be automatic for most misdemeanors.

We asked Totten about how this bill might be implemented. It was obvious that he has already thought downstream to how this might all be done. He said that some “evidence-based models” for risk analysis, based on the gravity of offenses, had already been developed, which had been peer-reviewed. It was his read that each local court could develop its own criteria, within the constraints of the bill. He is hopeful that a way will be found to administer the system with minimal risk to the public.

DA Totten thinks that the passage of Proposition 47, which downgraded the seriousness of many crimes from felonies to misdemeanors, among other things, makes SB10 more dangerous. He thinks that a bad title and summaryThe Safe Neighborhood and Schools Act) to Prop 47 it might have mislead voters as to the significance of the changes that they voted in. He says it has made CA less safe. Nearly all law enforcement organizations and Conservative groups opposed it.

A lot of clean-up needs to be done

– Ventura County DA Greg Totten on SB10

Sheriff Geoff Dean

 

 

VC Sheriff Geoff Dean

Retiring Sheriff Geoff Dean seems all-in for SB10. In a 9-14-18 phone interview with him, he indicated that he strongly supports it and thinks it can work, although he warned that the devil is in the details. He did not at all like the initial version, but said it had been improved greatly via joint interaction with officials and other organizations. He stated that the CA Sheriffs and Police Chiefs Associations now support it. Neither organization had responded to our requests for comments by publication time.

He said that it “might increase public safety” and it may work to keep dangerous people in jail. He pointed out that it is “relaxed” on low level offenses. Jail crowding mandates that, among other things, he informed me.

But, he is very negative on the 12 hour release policy, which he wants changed. He stated pretty much the same concerns as DA Totten did on this. He also wants the list of “exclusions” of more serious crimes increased. For example, many are concerned about some sex crime suspects who might simply be released in 12 hours.

Dean mentioned that the law is “relaxed” on lower level offenses and that part of the reason is to relieve pressure on overcrowded detention facilities.

It’s going to be very expensive, an unfunded mandate, so under state law, they must be compensated for costs, he pointed out. He warned that state funding “is not finalized.”

He estimates that 10 additional people would be needed to handle the incremental work imposed by SB 10, to have 2 people on duty 24/7 to meet the bill’s requirements at the Ventura County jail, with vacations, sick and administrative time all considered. 

We asked him why he wasn’t running for reelection. He said it was a tough choice, but he has served 41 years in law enforcement and this will provide an opportunity for “a younger breed” to move up.

He added that they are already doing a limited Ventura County pilot project without bail, for only certain crimes.

He’s concerned about the homeless situation- jail release without adequate services, feeding and health care for them. He mentioned that lack of housing is a factor. As for why there are so many local homeless, he said that a temperate climate beach community is quite a draw. But he says that homelessness is also increasing in places such as the Conejo Valley. 

 

Local State Assembly Candidates Weigh in.

AD44 Rep Jacqui Irwin

AD44 incumbent Rep Jacqui Irwin. CA Assembly District 44 includes most of Ventura County and portions of western LA County.

Sharp, hardworking, Progressive incumbent and candidate Jacqui Irwin is all-in for SB 10, recently telling me during an impromptu  conversation (on September 6) that it serves social justice in helping to ensure that people lacking legal and financial resources are not unjustly detained and that public safety is not endangered. She also told me that Sheriff Dean and District Attorney Greg Totten support the bill.  Well I got a different story when I spoke to DA Totten, covered earlier in this article.

She said that objections to the early versions and been overcome with modifications. She added that big improvements were made to the bill to plug holes and address objections by detractors, including increasing the exception list of crimes where release is granted. She added that the bill version I saw online was out of date since changes had only been submitted the week before. Detractors had pointed out that people charged with serious crimes would be automatically released. Some of those crimes may still not be addressed.

Jacqui publicly stated at the September 6 Oxnard InterNeighborhood Council meeting that she would meet me at any time to discuss this and other issues, but I was unable to get a commitment from her or her aide, nor would she respond to further subsequent requests to meet or speak with me on some key issues, such as this. (update 11:15 PM 10-4-18- Assemblywoman Irwin emailed me to contact her for an appt. I emailed a request back for available times).

 

AD44 candidate and attorney Ronda Baldwin-Kennedy

AD44 Candidate Ronda Baldwin-Kennedy

Oak Park District 44 Assembly candidate and attorney Baldwin-Kennedy has a neck-snappingly different viewpoint on SB10, born of heavy legal and life experiences.

She came seemingly from nowhere this year (actually from Santa Clarita a couple of years ago) to make a very respectable showing in the June primary, not only getting nominated, but subsequently even garnering the endorsement of one of her Democrat opponents, Robert Zelinsky.

Enroute to saying that SB10 “sucked,” Ronda schooled me on some key points of the bail system and flaws in the bill. You see, she is a practicing attorney, actually a minority attorney, who defends mostly indigent minorities against charges felonies, domestic violence, immigration issues and more. You couldn’t find a more front-line person and one more cognizant of minority/indigent rights/problems.  Not sure if this was tongue in cheek, but she added  a valid point: “SB 10 destroyed the whole bail bond industry putting many out of work at a time when CA should be creating more jobs. “

There is nothing wrong with the cash bail system…. The Eighth Amendment shows that the Founders endorsed it …. SB10 is the opposite of helpful … it would grant discretion to private parties

– AD44 candidate and Oak Park Attorney Ronda Baldwin-Kennedy

Ms. Baldwin Kennedy, Esq. laid out a case which in summary says: the cash bail system works fine, don’t mess with it. The nation’s Founders must have agreed, since they specifically mentioned in the Bill of Rights- 8th Amendment to the U.S. Constitution, namely: “Excessive bail shall not be required, nor excessive fines imposed, nor cruel and unusual punishments inflicted.” But, SB10 seems to assume that any bail is excessive. She also believes that public safety will suffer.

She said “don’t put criminals on the street.” Keep people behind bars who shouldn’t be out. The bail schedule is color blind-no preferences, she added. Where bail is warranted, prosecutors will work with them. If bail is appropriate, bail bondsmen require 10% and friends/relatives will usually help put it up, with payment plans available and family pressure to help ensure court appearances. Don’t forget, she works with many indigent defendants and sees/even negotiates these. She says that the accused can also get out on their own recognizance sometimes. “I have helped clients to do this with virtually nothing, or with payment plans,” she added. She even said suspects’ friends sometimes help raise the money through car washes and bake sales.

It was news to us, but she said that suspects are assessed for various court and administrative fees, which are sometimes waived. This in addition to fines and penalties which may be levied.

Ms. Baldwin-Kennedy said that usually plea deals are already made. She said she doesn’t usually take the early plea deals until pretrial, evidence is done first.

In contrast with most others interviewed (except Sheriff Dean), Ms. Baldwin-Kennedy actually thinks that “SB 10 is bad news for civil rights because it increases discretion of individuals” making release recommendations. She worried that probation officers (who would administer this) are not trained judicial officers. She believes that probation depts. are likely to outsource it to private organizations.

In the wrap-up, she opined that she would prefer more time for them to do a formal probation report, risk assessment and treatment program. She also made it clear that it should be repealed and the bail system restored.

 

State Senator Hannah-Beth Jackson…

…. is also all-in for SB10, saying it will provide equal justice for rich and poor. On a Fox news video, she never even addressed public safety issues. We did not interview her.

 

Sheriff-Elect Bill Ayub (won primary with no opponent on the ballot, although it is still disputed by disqualified candidate Bruce Boyer)-

Ventura County sheriff-Elect Bill Ayub told me that this issue has mostly been handled by Sheriff Dean and that he has only been on the periphery.

He is not enthusiastic about the passage of the SB10 bill. He says the existing system is working and that he “is a big fan of continuity.”

What we have works. I’m a big fan of continuity

-Ventura County Sheriff-Elect Bill Ayub

His view is that this is a radical departure, as bail has always been used to help reduce flight risk and that the outcome of the new approach, particularly on public safety, of a risk-based system, is unknown.

He said that “social justice” was the driver in passing this and groups like the ACLU were prominent in pushing it. ACLU actually opposed the version passed, which even some of the the more Progressive groups agreed to changes for public safety.

When I discussed the possibility that some of the probation work may be outsourced, he said he doesn’t believe that will occur in Ventura County.

He opined that with the passage of SB10, AB 109 and Prop 47 (the two previous laws lower the legal seriousness of some crimes and release prisoners), along with the erosion of the three strikes law, that public safety is “sliding back.” Crime statistics support that, although we can’t apply that to SB 10 which hasn’t yet gone into effect.

Ayub informed us that previous legislative and court actions pushing inmates from state prisons to county jails have resulted in overcrowding, increased assaults on facility employees and other inmates and a lack of needed services for the more hardened, “sophisticated, higher-level criminals,” who would otherwise be in state prisons. He noted in particular the lack of program infrastructure to help reduce recidivism and build marketable skills for the outside world for inmates.

That being said, he believes that the new system could be made to work, IF some changes are made to the most objectionable parts of the law and IF the county develops the right policies and IF it implements them properly. Those are three very big “ifs.” He said “we can exert some influence.”

He is particularly concerned about the 12 hour release policy. He fears that there will be inadequate time to do risk assessments properly and that people not able to take care of themselves and may actually be imperiled (ed note: not to mention the public). He pointed out that at night, services aren’t available for released inmates.

Ayub also pointed out a referendum to repeal SB10 has been initiated.

He mentioned that the courts will handle the more serious felony holds, while less serious crimes will be handled by Probation.

 

Voter Initiative to Repeal

According to VC DA Totten, a voter initiative to repeal SB10, which is scheduled to go into effect on 10/1/2019, has been filed and would have to get the requisite half-million+ signatures to put it on the ballot. If that occurs, the bill’s implementation must legally be stayed until the voters have spoken, which may not be until 2020.

Otherwise, it will go into effect in October, 2019. Implementation is expected to be very difficult and expensive, per Totten, Dean and Baldwin-Kennedy, as multi-agency development of policies and procedures is required and day-to-day resources required for training, implementation and ongoing operation are expected to be quite large. Would it be worth it, considering costs and risks?

 

Other reading:

https://leginfo.legislature.ca.gov/faces/billTextClient.xhtml?bill_id=201720180SB10

http://www.foxnews.com/politics/2018/08/28/california-to-become-first-state-eliminating-bail-for-suspects-awaiting-trial.html

https://www.sacbee.com/news/politics-government/capitol-alert/article217461380.html

https://www.sacbee.com/news/politics-government/capitol-alert/article216681370.html

https://www.sacbee.com/opinion/california-forum/article207085264.html

Bail reforms sounds like a good thing, but at what cost? | Thousand …

Voter referendum drive launched to block overhaul of California bail …

Revamping the cash bail system | Calaveras County’s Most Trusted …

 

George Miller is Publisher and Co-Founder of CitizensJournal.us and a “retired” operations management consultant residing in Oxnard. 


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7 Responses to CA Bail Elimination Experiment to Begin- Local Officials Comment

  1. William Hicks October 6, 2018 at 9:15 am

    You have to ask yourself what will happen with the difference between judges with opposite philosophies dealing with the same or similar cases.

    What decision with a judge that allows people to be released without bail and the perp commits an additional crime while being released?

    What happens when a judge chooses to just keep people in jail and not provide bail?

    What happens to justice when judges are only provided with this kind of decisions?

    Reply
    • Citizen Reporter October 6, 2018 at 9:17 am

      It appeard as though most release decisions would be made by probation, not judges, Bill.

      Reply
      • William Hicks October 6, 2018 at 9:22 am

        WELL then, how many more Probation Officers will be needed to meet this artificial demand for Bail?

        Reply
        • Citizen Reporter October 6, 2018 at 11:18 am

          If you read the article, you should already know.

          Reply
          • William Hicks October 6, 2018 at 12:41 pm

            Just a rhetorical question.

  2. c e voigtsberger October 5, 2018 at 8:39 pm

    Next time you see a cop ask him how many times a day he makes an arrest on wants and warrants where the criminal got released on low bail or O.R. and failed to show. This bill gives the crook three failures to appear. This costs more administrative time, if nothing else. It allows the habitual criminal to continue his criminal lifestyle for 3 FTAs. That means the first time he FTAs he goes free until apprehended. That may be six or eight months or longer until he gets caught up again. Gets out under this system. FTAs again. Another six, eight months until he is again apprehended. Repeat cycle. Finally he is incarcerated awaiting trial. In the meantime there have been reams of paper generated because of his FTAs. More clerks have to be hired for generating the paper and then filing it. That’s okay, we will just raise the penalty assessment on traffic tickets where the violator has money.

    Reply
  3. Mark Savalla October 5, 2018 at 11:47 am

    What kind of reason is “social justice” for a reason to do away with the bail system. The real reason seems to be a letting out more illegals and criminals hoping for their vote. The present system works fine and will not cost more money if left in tact. The new system will not help the criminal justice system, will create another level of government and cost the taxpayer more money.

    Reply

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