New California Law Eliminates Cash Bail—Maybe: Policies and Procedures Delay Implementation until October 2019

The fervent fight to eliminate California’s discriminatory cash bail system has resulted in qualified reform. Initial reporting on the subject is laced with hyperbole—for example, Thomas Fuller reported in an August 28, 2018, New York Times article, that “California . . . became the first state to fully abolish cash bail, a step that backers said would create a more equitable criminal justice system, one less dependent on a person’s wealth.”

Fuller quotes further puffing by Governor Jerry Brown: “Today [August 28, 2018], California reforms its bail system so that rich and poor alike are treated fairly.” The substance of the new law is based on an equitable and humanitarian formula regarding pretrial detention. It will guide judges who impose criminal sentences on whether to set bail for persons charged with a crime, a move that should help prevent people awaiting the court process from exhausting their resources before reaching a disposition in their cases or until trial.

In support of the new law, California’s supreme court chief justice Tani Cantil-Sakauye proclaimed in a news release that “this is a transformative day for our justice system. Our old system of money bail was outdated, unsafe, and unfair.” Not so fast—read on.

Bail Primer[1]

If you’ve been arrested for a crime, in most cases you don’t simply go home. The judge can allow some people to go home on their own recognizance (OR). All that is necessary for an OR release, after a judge makes a brief assessment of your reliability, is a written agreement that you will return for your next court date.

The majority of cases, however, do not involve an OR release.

Procedurally, a judge will decide the severity of the charge, and upon that determination, set the bail amount. According to About Bail, “bail is a set amount of money that you pay to the courts in order to stay out of jail during the time between the hearing and the trial. Depending on the severity of the crime, this amount can differ in value. Bail amounts can be several thousand dollars to several hundred thousand dollars. . . .Bail is always set to discourage you from skipping out on trial.”

If you don’t show up for a court appearance, the full amount of your bail is then owed to the courts. A bench warrant will be issued by the court to have you found and arrested. You’ve absconded—yet another alleged crime you’ll have to answer for. Good luck on ever getting bail again.

Paying cash bail usually means making a contract with a bail bondsman—bondsmen’s offices are scattered around in inner city and courthouse neighborhoods.

Bail bond companies usually charge 10 percent of the bail amount and require collateral or personal guarantees for payment of the remaining 90 percent if you abscond. A $10,000 bail bond costs $1,000—cash, check, or charge. The remaining $9,000 must be secured in case you fail to appear in court. For poor people, the bond may as well be a million dollars—they don’t have access to $1,000 to pay for their freedom between court dates, and normally they would not have collateral (i.e., real property) to secure the balance. In poor peoples’ worlds, finding collateral or a guarantor for the balance owed is like getting a winning lottery ticket—the odds are not good.

See my discussion about the immorality of a money bail system in my November 9, 2017, post, America the Confiner: End Discriminatory Money Bail.

Historical Steps toward Reform

In a legislative attempt to overhaul California’s money bail system, identical bills were introduced into the assembly and senate. Senate Bill (SB) 10 and Assembly Bill (AB) 42 were geared toward reducing the number of people confined to jail pending trial or settlement of the charges against them for lack of enough cash or collateral to pay a bondsman. So, the accused sit.

The legal digest for AB 42 raises a potential impediment to the implementation of the new law:

The bill [now a law] would require, except when a person is arrested for certain felonies, that a pretrial services agency conduct a pretrial risk assessment on an arrested person and prepare a pretrial services report that includes the results of the pretrial risk assessment and recommendations on conditions of release for the person immediately upon booking.

This review would take place in the hours after an arrest. As with any legislation that changes obsolete, engrained laws, there are many facets and details to the proposed law; I recommend reading either bill for all the details.

Obstacles for Implementation Cause Delay until October 2019 and Beyond—or Never

New legislation often requires policy and procedures to be in place before going into effect. The new legislation is an outline of legislators’ intentions, but without the steps necessary to satisfy the legislative intent, what remains is a hollow law. Because the new law requires a pretrial services agency to conduct a pretrial risk assessment, such obtuse and mired language must be clarified in the form of policies and procedures.

In a September 4, 2018, Quartz article entitled California Just Replaced Cash Bail with Algorithms, Dave Gershgorn points out the substantive procedure that gives the new law its pragmatic inertia: “Instead of leaving cash as collateral for freedom before a trial in court, those accused of crimes in California will be graded by an algorithm, starting in October 2019. A county official will then take that grade and use it to recommend whether the accused should be released or remain in jail” (emphasis added). In California, each county will have to put in place a system to determine a suspect’s risk of flight and the possibility of a suspect’s committing a crime pending the outcome of the original alleged offense. At present, it is undecided whether the counties will use a system provided by outside contractors or one created by the counties—by October 2019.

There’s a problem with using algorithms to predict human behavior.

A ProPublica article spells it out:

In 2014, then U.S. Attorney General Eric Holder warned that the risk scores might be injecting bias into the courts. He called for the U.S. Sentencing Commission to study their use. “Although these measures were crafted with the best of intentions, I am concerned that they inadvertently undermine our efforts to ensure individualized and equal justice,” he said, adding, “they may exacerbate unwarranted and unjust disparities that are already far too common in our criminal justice system and in our society.”

In the Quartz report, Gershgorn nails the issue:

But algorithmic risk assessment makes the details of how this new legislation is implemented all the more important—while some activists say that cash bail created a predatory industry around keeping people tied to the criminal justice system, others point to the biases against people of color documented in algorithmic risk assessment tools used in the past.”

The potential flaw in these risk assessments is that “a lot of these algorithmic-based systems are relying on data collected through the criminal justice system. Police officers, probation officers, and judges, none of the actors in the justice system are data scientists,” Rashida Richardson, policy director for Al Now, is quoted as saying.

Gershgorn identifies another layer of difficulty for algorithmic risk assessments: “When some risk assessment algorithms weigh more than 100 factors [actually, some as many as 137], a lack of transparency makes it difficult to tell if the factors that an algorithm considers influential can relate to race, gender, or any other protected demographic.”

Gershgorn quotes “Jessica Bartholow, policy advocate for the Western Center Law on Law & Poverty, which co-sponsored the bill [SB 10].” Bartholow highlights the bottom-line problem with California’s inchoate law:

“If we end up with a black box for an assessment tool, and we’re not able to run the data, and we’re not able to make changes swiftly to a computer system, then we’re surrendering to an algorithm that we can’t change or really know, Bartholow said. One thing I would say, though, is poverty is the biggest algorithm of them all—who is born with money and wealth and access to it and who is not—and today the money bail system surrenders people to that.” (emphasis added)

Conclusion

Sometimes reform measures read well, but activation and implementation can bog down good-faith legislative intent. SB 10 has a built-in deadline to meet before California’s pretrial detainees can benefit from what sounds like a great idea. My concern is that this clearly articulated criminal justice reform law can implode to dust due to a cumbersome and seemingly biased computer interpretation of possible human conduct in a system without cash bail.

Recommend Reading

For more insight on this subject, read California Is Changing Its Bail System. The Reforms Are Hopeful, but Unproven.

I always look forward to reading your comments. Please let me know your thoughts about this matter.

Image courtesy of 123rf.com

[1] This section restates points I made in my July 13, 2017, post, “Bail.”