California is on track to become the first state to eliminate money bail with the passage of California Senate Bill 10, but, even as the bill becomes law, it continues to attract controversy.
California SB10 has been shaped over two years of thought and debate; it was intended to help lower-income defendants who were unable to scrape together sufficient funds to post bail and left to languish in jail. California Governor Jerry Brown proclaimed the measure as a way of ensuring that ”Rich and poor alike are treated fairly.” Now, instead of having to produce a certain amount of money before being released from custody, defendants are subject to a risk assessment by individual courts. The court will determine if a defendant poses a flight risk, that is, if the defendant is likely to appear in court after being released. The court will also evaluate whether the defendant poses a public safety risk. Low-risk defendants would have the least restrictive, non-monetary conditions (including possibly ankle monitors and regular check-ins with the court) for pretrial release. Higher risk defendants, like those who have committed violent felonies or who are already under court supervision, would remain in custody.
These reforms have attracted some (unsurprising) criticism from certain quarters. For example, bail bondsmen – professionals who post bond for defendants and ensure their appearance in court – argued that SB10 would effectively destroy their livelihood. However, the denunciations have also come from some unexpected sources. The ACLU, which initially supported the bill, fears that the law in its current form gives judges and prosecutors too much discretion and may disadvantage minority communities, which are more likely to come into contact with the criminal justice system. Other jurisdictions that have eliminated cash bail, including Washington, D.C., have met with success: last year, nearly 90 percent of defendants released without having to post bail appeared in court. Nevertheless, those courts acknowledge that risk assessments might result in biased treatment. Maryland, which also eliminated the cash bail system, may confirm some of the ACLU’s fears: more defendants remain in jail because of discretionary risk assessments. The benefits of eliminating cash bail may be unclear, but, with growing concerns about the fairness and purpose of the criminal justice system, more states may soon follow in California’s footsteps.