A proposed senate bill is aiming to abolish the bail bond system. A system that has resulted in poor people remaining locked up in jail awaiting trial.
Supporters of the California Money Bail Reform Act or SB 10, say the bail system is systematically unfair to poor defendants and is in fact based more on an ability to pay than any reasonable determination of flight risk or danger to the community.
Rarely does a state senate bill get the appeal for public support that is behind SB 10, including the NAACP, the ACLU, criminal justice organizations, and public defenders, in addition to a recent decision of the California Court of Appeal that declared California’s money bail system unconstitutional.
The Santa Cruz branch of the NAACP sponsored a Bail Reform Symposium at the Resource Center for Nonviolence in Santa Cruz last week that included a panel of local legal experts who weighed in on the proposed senate bill.
“My experience has been that jails and prisons do not rehabilitate…and pre-trial incarceration often serves to cut off possibilities for rehabilitation….The existing (money bail) system, statistically, shows impoverished people of color are often deprived of opportunities that would otherwise be available to them in our judicial system,” said Jay Rorty, a criminal defense attorney who spoke on the symposium’s panel.
The panel included Larry Biggam, partner of the firm that serves as the Santa Cruz County Public Defender’s Office, Fernando Heraldo, Chief Probation Officer of Santa Cruz County Probation Department, Honorable Superior Court Judge John Salazar , Rob Wade, Chief Deputy District Attorney for Santa Cruz County, and Rorty, a local criminal defense attorney .
Chief Deputy Defense Attorney Wade made clear the role of prosecutors is ensuring community safety and making bail recommendations that keep dangerous offenders in jail. While drawing a distinction between non-violent property crimes and violent crimes, Wade said risk to the community safety is already individually assessed with bail recommendations made by prosecutors. SB 10 would replace the “bail schedule” currently used by judges setting bail amounts with an individualized assessment of risk and likelihood of flight.
Biggam noted that while Wade’s job is to represent the people of the State of California, his job is to represent the “little people” in the courtroom who cannot afford a lawyer. Biggam explained that while many of his clients are guilty, they are often “less guilty than charged.”
Biggam emphasized the bail schedules used by judges in busy courtrooms discriminate against the poor, and “have no relationship to flight risk or propensity to commit another crime,” but are used as a proxy for accurate assessment. This has resulted in 63 percent of inmates in county jails across the state awaiting trial who cannot afford bail, about 48,000 prisoners total, while “those with fat wallets are getting out that may be a threat to the community…we know the system is broken,” Biggam said.
“I have better results with a defendant that comes in from home in a suit, who has managed to keep his job and support system intact since his arrest, than a defendant in an orange jail jumpsuit,” Biggam said, citing several studies of the wide differences in sentencing between those currently in jail and those out on bail.
Santa Cruz County’s Probation Department is well ahead of the curve in terms of pre-trial assessment of risk, and, “We’re very proud of a risk assessment instrument that has proved accurate”, said Chief Probation Officer Heraldo. Working to prevent jail overcrowding yet protecting public safety, the pre-trial risk assessment, as an alternative to money bail, has been successful with a 95 percent court appearance rate, and a 90 percent “no new criminal activity rate” since release from jail, and “it works,” according to Heraldo.
Both Judge Salazar and Deputy District Attorney Wade agreed that Santa Cruz County was an exception in the state with pre-trial assessments and “own recognizance” probation services, which will be mandated by SB10 if it passes. Both recognized however that many other counties do in fact stay close to locally mandated bail schedules, resulting in an average, state-wide bail amount $50,000, which is five times the national average.
Tash Nguyen, senior organizer for the Ella Baker Center for Human Rights, a criminal justice reform organization based in Oakland, moderated the symposium and emphasized that, “women bear the brunt of the incarceration system for having to pay the bail bonds, and the court fees,” Nguyen said.
Judge Salazar stressed that “what people and politicians tend to lose sight of – is there are a limited number of jail beds, and we need to decide who we want in those beds.” Despite what some crime victims and prosecutors would like to see, “You can’t lock up everybody!” Judge Salazar said with emphasis, and hard decisions about pre-trial incarceration are made every day by the courts.
According to Larry Biggam, 13 states “are way ahead of us” in terms of bail system reform and individual assessment of risk, including New Jersey, reducing pre-trial incarceration by one third in the last two years, and in Washington D.C. “We can do better—the time is right for SB 10,” Biggam said.
Judge J. Anthony Kline, the presiding judge of the 1st District Court of Appeal in San Francisco made a landmark ruling in the so-called Humphrey case in January that the current bail system is basically unconstitutional and in drastic need of legislative reform. The court ruled, “by setting bail in an amount it was impossible for [Humphrey] to pay,” in effect was a violation of “due process protections” guaranteed by the Constitution.
SB10 was passed by the State Senate in May, and now is the Assembly’s Appropriation Committee. Lobbying against the bill by the bail bond industry has been strong, as the entire business of making bail bond loans, in which the bail bond company keeps 10 per cent of the loan, is threatened by the bill. Other public safety groups, as well as the Association of Deputy District Attorneys have come out in opposition to the bill.
