Criminal Justice Reform: Changes to the Pretrial System

In 2017, 8 California State Legislative Session, SCG developed an analysis on the background and implications of Senate Bill (SB) 10 (Hertzberg), which proposed to restrict the practice of setting “monetary bail” by establishing a risk assessment tool conducted by judges. Monetary bail is a sum of money that an accused person awaiting trial can deposit to receive a temporary release from jail. The deposit conceptually acts as an incentive for accused persons to return to court. SB 10 proposed an alternative to the monetary bail system with a statewide “risk assessment tool.” The tool determines whether defendants can be safely released from jail while awaiting trial. SB 10 proposed this change because the bail system unfairly affects individuals who cannot afford to pay for bail.

Since SCG’s initial reporting of the bill, previous State Governor Jerry Brown signed a revised SB 10 on August 28, 2018. The bill will take into effect on October 1, 2019. However, a referendum filed by a coalition of bail industry companies could halt the bill’s enforcement until the next general election in November 2020.

Bail industry supporters submitted more than 576,745 signatures to county elected officials, surpassing the 365,880 signatures required to qualify the referendum for the next general election ballot. The referendum is currently in signature verification, with a status update expected in mid-January. Following is a brief overview of the bill that will likely appear before voters in November 2020.

BACKGROUND

On average, 63 percent (roughly 46,000) Californian inmates await trial or sentencing in jail due to an inability to afford bail. UCLA’s Department of Public Policy reported that California’s median bail amount is five times greater than the rest of the country ($50,000 in California; less than $10,000 elsewhere). Persons who cannot afford to pay bail or choose not to pay the amount may wait in jail for weeks or months before their cases go to court, even when the charge is a misdemeanor.

The Human Rights Watch, in their report, adds that those unable to pay for bail may plead guilty for a sentence shorter than the time required to await trial. The consequences of remaining in jail or pleading guilty can negatively affect individuals, who may end up losing their jobs, homes, and family connections.

These pretrial practices disproportionately affect low-income individuals and people of color. Bond amounts for African-American men are 35 percent higher than bond amounts for white men, and Latinx men face bond amounts 19 percent higher than white men. Also, UCLA’s report indicated that between 2005 and 2013, people of color are disproportionately represented in the pretrial population. African-Americans made up six percent of California’s population, but 17 percent of arrests, and Latinxs accounted for 37 percent of California’s population but 42 percent of arrests.

Pretrial detention is an emerging issue nationwide. Alaska and California become the latest states to enact bail reform. The following states have also passed legislation to establish or expand pretrial service agencies to administer conditions for release: Colorado, Hawaii, Kentucky, Nevada, New Jersey, West Virginia, and Vermont.

CURRENT LAW

Existing state law requires that a defendant held for a misdemeanor be entitled to release on their recognizance. However, defendants are not entitled if the court makes a finding on the record that the defendant would compromise safety or not reasonably ensure the defendant’s required court appearance.

Examples of misdemeanors include petty theft, driving on a suspended license, vandalism, and assault. Also, existing state law requires the court to consider the protection of public safety, the seriousness of the offense charged, the defendant’s previous criminal record, and the probability of the defendant’s appearance in court when setting bail. Defendants who committed a serious crime, such as murder, rape, robbery, cannot receive bail.

BILL IMPLICATIONS

According to the Judicial Council, the California courts’ policy-making body noted that a risk assessment tool is an appropriate and effective alternative to the current pretrial system that results in pretrial outcomes that are frequently unsafe and unfair. The Council recommended:

• Requiring “Pretrial Service Agencies” to report recommendations for conditions of release for a defendant, except for when a person is arrested for specified violent felonies;
• Establishing definitions such as “high risk” and “low risk,” based on the risk assessment tool; and
• Requiring persons arrested or detained for a misdemeanor to be released without being required to submit to a risk assessment.

Pretrial Service Agencies and Risk Assessment Tool

SB 10 maintains its initial proposal that requires courts to establish “Pretrial Assessment Services” (PAS), which the bill defines as an entity or program responsible for assessing the risk level of persons charged.

In jurisdictions outside of California, PAS developed a report on release recommendations for a defendant, except when a person is arrested for specified violent felonies. The recommendations are based on a “validated risk assessment tool” given within an unspecified number of hours after the arrest and determines the defendant’s likelihood of compromising public safety and failure to appear in court.

A risk assessment tool becomes validated through proper scientific research and statistical analysis that assesses the risk of a person failing to appear in court or the threat of public safety. The judge is required to consider the report when deciding whether or not to release the defendant without bail. The court can also order a monetary bail set at the least restrictive level necessary to ensure the defendant’s court appearance.

New Law Authorizes Court Employee Discretion

SB 10 maintains the initial proposal that establishes PAS. However, the revised bill would authorize the services to be performed by judges and prosecutors or through a local public agency contract. However, the local public must have relevant expertise in risk-based determinations, supervise offenders in the community, and employ peace officers. If no agency agrees to perform the assessment, the court can contract with a new local pretrial assessment service agency.

Pretrial Score Categories

SB 10 introduces three categories (low, medium, high) to score an individual’s risk level based on the validated risk assessment tool. For instance, “medium risk” indicates that an arrested person is considered a moderate level of risk for failure to appear in court or danger to public safety.

Also, the bill authorizes PAS to release a person assessed as low risk. The bill also requires a superior court to adopt a role allowing PAS to provide the release or detention of medium-risk defendants, support an effective and efficient pretrial release or detention system that protects public safety, and respect defendants' due process rights.

If a person is not released, the bill will authorize the court to review and release the person. The bill would allow the court to detain the person pending review if there is a substantial likelihood that no condition or combination of pretrial supervision conditions will reasonably assure the person’s appearance in court or public safety.

The release shall not be applied to the following groups:

·     Persons assessed as high risk;

·     Persons charged with a serious felony or a violent felony; and,

·     Persons who, at the time of arrest, were pending trial or sentencing in a felony matter.

POTENTIAL CONCERNS

While SB 10 represents a step forward in assisting low-income individuals who commit misdemeanors to be released from jail, criminal reform advocates indicate that the new law may create potential concerns in objectively assessing the inmate’s level of risk. 

Court Employees Jurisdiction

Advocates argue that by allowing judges to assess, SB 10 may significantly increase preventive detention and not lower pretrial incarceration rates. The Human Rights Watch (HRW) indicates that the bill grants judges the ability to imprison individuals they believe cannot be assured of avoiding arrests or appearing on future court dates. HRW suggests that judges may hold biased in their assessments of inmates, which may increase imprisonment.

Also, HRW raised concerns about the local public agencies eligible to perform risk assessments. Requirements to be considered an eligible agency includes supervising offenders and employing peace officers, which may cause agencies to unfairly and subjectively incarcerate inmates.

Objective Score Categories

Additionally, HRW raised concern that the risk categories are not objective assessors of risk. They indicate that the categories required in the bill are policy choices that allow whoever controls the implementation of the tool to define what low, medium, and high risk is. The scoring may be subjective and be unintendedly based on implicit bias, which can falsely categorize inmates, especially people of color.

Resources

In 2017, the Open Philanthropy Project published a report on several criminal justice reform strategies, which may inform grantmaking strategies to build off the changes made by SB 10. Some grantmaking strategies include:

• Providing resources to advocates that engage in state and local policy reform that focuses on policies most likely to impact the number of people incarcerated while improving individual and public safety;
• Investing in multi-directional pressure on prosecutors to focus more on serving communities broadly and less on convictions; and,
• Supporting leadership development of advocates for criminal justice reform, including faith-based communities, formerly incarcerated individuals, and crime victims.

Conclusion

While SB 10 indicates a step to ending bail reform, significant policy questions remain outstanding. The revised bill maintains initial proposals to establish a pretrial assessment service and requires individuals who committed misdemeanors to be released. However, advocates indicate that SB 10 poses unique challenges in lowering pretrial incarceration rates due to recent bill changes that grant court employees to perform assessment services.