Elimination of cash-based bail likely to be challenged, experts say

Last month, California became the first state to completely abolish the cash bail-bond system for suspects awaiting trial. “Today, California reforms its bail system so that rich and poor alike are treated fairly,” Governor Jerry Brown said at the signing ceremony for SB 10, the California Money Bail Reform Act. The Governor’s signature on SB 10 mandates that the entire bail bond industry will be out of business, in favor of a “risk-based assessment” of the accused, on October 1, 2019 when the bill goes into effect.
In a striking reversal of support, criminal justice organizations such as the American Civil Liberties Union (ACLU) and National Association for the Advancement of Colored People (NAACP) not only withdrew support of the final version of SB 10, which they had previously advocated for, but began actively opposing it.
What prompted the change was because SB10 replaces money bail with a pre-trial risk assessment that critics claim will increase pre-trial incarceration and “lacks protections against racial bias,” said Natasha Minsker, a spokesperson for the California branch of the ACLU.
A week before Gov. Brown signed SB 10, Erwin Chemerinsky, Dean of the UC Berkeley School of Law, wrote in an Op-Ed for the Sacramento Bee, “Although I strongly support eliminating money bail and urged passage of SB 10, the recent amendments to the bill could lead to the detention of more people, and likely will exacerbate racial injustices. Gov. Jerry Brown should veto it.”
“Replacing a wealth-based system with a risk-based system of determining pre-trial incarceration is bound to be fraught with difficulties,” said Larry Biggam, Public Defender for Santa CruzCounty. “I understand the bill got seriously compromised at the end. People I respect are very concerned about this, and I’ve got to read the fine print in the revised bill before I offer any opinion on it. I’ll tell you this – judges are risk-averse, and giving judges unfettered discretion on pre-trial incarceration is likely to end up with more people locked-up before trial,” Biggam added.   
Based in San Jose, Silicon Valley De-Bug is a community organizing, advocacy, and a multimedia platform for progressive issues that advocated against the “pay-to-get-out” bail system for years, and considered itself a co-sponsor of SB 10 before the eleventh hour changes to the bill regarding the risk-assessment methodology.  In a long letter to state Sen. Bob Hertzberg, D-Van Nuys, co-author of SB 10, Silicon Valley De-Bug wrote,
“The bill trades in the exploitative money bail system for a new pretrial detention regime that keeps people locked up through the use of unregulated risk assessments controlled by law enforcement and expansive, unchecked, judicial mechanisms. It is a legislative bait and switch,” the letter reads, and goes to detail the problems with the pre-trial risk assessment that will replace the bail system. “Several major changes in SB10 have made the legislation not only unsalvageable for us, but directly threatens the freedom of the communities we serve,” the letter said.
Ray Aardwolf, owner of Aardwolf Bail Bonds in Santa Cruz, was clear as to what he thinks can be expected if SB 10 is allowed to prevail. “It will do a lot of damage to low-income people- it will add to jail overcrowding, loss of jobs for people who can’t get out in time to go back to work, and cost the tax payers millions. It’s going to be crazy if not overturned by the voters,” Aardwolf said.
Aardwolf explained that if somebody gets arrested on a Friday night, it is likely this person won’t be able to get the necessary risk assessment completed within four or five days, and may not be able to get out of a jail for as long as a week- which often means loss of a job, and possible intervention of Child Protective Services if the person is a parent.
Aardwolf explained that the bail bond industry, which is threatened with extinction come next October, is fighting back by collecting signatures for a referendum to overturn SB 10 by the voters. The proponent of this referendum has until November 26 to collect 365,880 signatures of registered voters state-wide to have the referendum included on the 2020 general election ballot.  Aardwolf said his understanding was that if they got the requisite number of signatures by Nov. 26, the implementation of SB 10 will be delayed until the results of the 2020 vote on the repeal referendum are certified.
Back in January, the stage was set for the legislative approval of SB 10 by a ruling of the First District Court of Appeals that found the current bail setting practices were unconstitutional. According to a statement from Sen. Bob Hertzberg’s office, “In its ruling, the court states that legislation is “desperately needed” and mentions SB 10…. the San Francisco court declared it is a violation of 14th Amendment due process rights to detain defendants before being convicted without protections.”
John Raphling, a senior researcher on criminal justice for Human Rights Watch, and Pete White, executive director of Los Angeles Community Action Network, in an Op-Ed for the LA Times, wrote, “Politicians say we need to trust the judges, who will control the process. But judges are the ones who have long misused money bail to keep people in custody and pressure them to plead guilty quickly.”