Legislative Update: California Bail Reform Will Be Revisited Next Year

Bail reform has been the subject of debate in California in 2017 with the introduction of twin bills in both houses of the Legislature, Senate Bill 10 and Assembly Bill 42.  SB 10, introduced by Senator Bob Hertzberg, relating to bail and pretrial release, would “declare the intent of the Legislature to enact legislation that would safely reduce the number of people detained pretrial, while addressing racial and economic disparities in the pretrial system, and to ensure that people are not held in pretrial detention simply because of their inability to afford money bail.”  This measure passed the Senate in May, however its companion version, AB 42, introduced by Assemblymember Rob Bonta, died in the Assembly the next day.

Governor Jerry Brown subsequently informed the state that there will be no bail reform this year because certain wrinkles need to be ironed out.  The bill will be addressed next year following the adjournment for interim recess that began a little over a week ago.

Why the struggle to pass bail reform?  One reason may be that the bail industry has been unfavorable to the passage of these bills.  Hundreds of bail agents came to the state Capitol to oppose AB 42 last spring.  Most notably, reality star Duane “Dog the Bounty Hunter” Chapman testified at a committee hearing against the bill noting the unfairness to crime victims and challenging the notion that the bail system was unfair to lower income defendants.  He stated,

Poor people don’t break the law.  They don’t go outside, they don’t have the money.  It’s not the poor man that runs.  He has no money to run.  It’s just an excuse to say that.

The issue, however, has brought out celebrities on both sides of the issue.  A few weeks ago, prior to the Governor’s announcement postponing bail reform, rapper and activist Common put on a free “Imagine Justice” concert on Capitol Mall in Sacramento in support of SB 10.  During the performance he told his audience,

The reason I’m on this stage here right now is because of mass incarceration.  I believe we all have a duty to look out for those who are being overlooked and those who are being thrown away.  Because we all have made some type of mistake – we all had issues and did things that we wish we could take back. But when people are willing to transform and change their lives, they shouldn’t be punished for it forever.

Senator Hertzberg would agree and has stated in favor of his bill: “The truth is today, under the cash bail system, if you can write a check, public safety doesn’t matter.”

But Governor Brown has put the brakes on bail reform, at least for now, to allow for negotiations to continue with legislators and court representatives such as the Governor himself, Senator Hertzberg, Assemblymember Bonta and Chief Justice Tani Cantil-Sakauye, who is the chair of the Judicial Council.  The Judicial Council produced a letter favoring the goals of SB 10, but expressed hesitation about its implementation.  Chief Justice Cantil-Sakauye has created a work group to study these concerns and to issue recommendations.  So the end-product remains to be seen.

California is by no means the pioneer of the idea of changing the money bail system to remove the disparities between the haves and have nots who have become entangled with the law.  Kentucky and New Jersey have moved over from bail toward an individual assessment of risks such as looking at one’s criminal and substance abuse history.  Colorado and West Virginia have looked for ways to enhance their assistance for defendants prior to trial such as introducing a telephone reminder system to reduce the number of skipped court dates.  The District of Columbia has formed an innovative Pretrial Services Agency.  And now the Federal Government has heeded the call for reform.  Senator Kamala Harris (D) and Senator Rand Paul (R), an unlikely union from opposite sides of the aisle, have joined forces to introduce the Pretrial Integrity and Safety Act of 2017 to persuade states rather than to compel them to come up with other solutions to cash bail for ensuring that criminal suspects appear for their scheduled court dates.

Legislative Intent Service, Inc. has been providing legislative research for over 40 years.  If you would like more information on any of the legislation mentioned in this article, such as California twin bail reform measures, out-of-state bills such as Kentucky’s and New Jersey’s solutions to alternatives to the money bail system and even federal research including the Pretrial Integrity and Safety Act, or if you are interested in research on any other topic, be it statutory or regulatory, we can help.