In August 2018, California Governor Jerry Brown signed Senate Bill 10 into law, ending the state’s cash bail system, which many say unfairly impacts lower income individuals charged with crimes. Under the existing cash bail system, bail amounts are set by judges based on a variety of factors, such as public safety, the seriousness of the crime and the individual’s flight risk. In cases in which those accused cannot afford bail, they remain in custody, pending adjudication of their case. Those supporting the bill point out that income level should not be a factor in determining whether a person should be free on bail while awaiting court dates or trial.
The change will take effect on October 1, 2019. Replacing the cash bail system will be agencies referred to as “pretrial assessment services,” which will determine an individual’s eligibility for non-monetary conditions of release based on the person’s perceived threat to society, likelihood of flight, and other considerations. Counties throughout the state are called to establish these local agencies to assess individuals arrested on felony charges for their safety risk and likelihood of returning to court for hearings.
Individuals who pose little risk to the public, and are likely to return to court, will be categorized as “low” risk and will be released with minimal restrictions. Those categorized as “medium” risk may be released or detained depending on local agency standards. “High” risk individuals, for example, those committing violent crimes, currently under court supervision, and those that pose flight risks, will remain in custody until their arraignment.
While SB10 certainly addresses some of the shortcomings of the cash bail system, it hasn’t been embraced by all. Concerns have been raised about the expanded process for prosecutors to file for preventive detention, which would block a defendant’s release pending trial if there are no conditions to ensure public safety or a return to court. There is also the concern that the tools used to assess risk will reflect racial biases that are currently part of the criminal justice system. Others warn that the new system will mean the detention of more people awaiting trial than the existing cash bail system. Eliminating the cash bail system also means an end to the state’s bail bond industry.
While proponents hail SB10 as a step in the right direction, there is still a lot of uncertainty with respect to how the courts are going to enforce the requirements called upon by the bill. There is ample work to be done before it goes into effect on October 1st. At Higgs Fletcher and Mack, we’re monitoring the bill and its impacts closely to best guide and advise our clients.
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