Putting the Brakes on SB10 and the Rush to a Bail-Less Society

In the final days of his governorship Jerry Brown of California signed into law a bill that went by the innocuous title of “SB10”. That is, Senate Bill 10. When it first came before the California legislature SB10 was hailed as the answer to everything that ails the American bail system. In one fell swoop unjust incarcerations would be eliminated, poverty would be decriminalized, those fine upstanding B&E guys who work Potrero Hill in San Francisco would have an opportunity to demonstrate their trustworthiness and dogs and cats would live together in peace and harmony.

But a funny thing happened on the way to judicial nirvana: reality. You see the fact is that:

• While some people are being held unjustly others are actually very dangerous individuals.
• The bail bonds system didn’t criminalize poverty, a lot of poor people are committing crimes and getting caught.
• The B&E guys can’t be trusted to show up for their court date any more than they can be trusted with your TV.
• And as for dogs and cats, well, the jury’s still out.

Bail Bonds Get a Temporary Reprieve

Almost from the minute SB10 arrived on Jerry Brown’s desk it was facing fierce opposition from many of the same groups that had initially championed it. That includes the NAACP and the ACLU among dozens of others. Their change of heart stemmed from two sources. First, the bill had been fundamentally altered to provide judges with enormous discretionary power when it came to detaining suspects and second, data had started rolling in from around the country which showed that risk assessment algorithms - intended to take the place of the bondsman - were deeply and fundamentally flawed.

Those powerful civil rights groups lobbied Brown to kill SB10 though he signed it anyway right before exiting the political stage. But his disregard for legitimate concerns about the bill didn’t faze opponents, who immediately began circulating a petition to postpone enactment of SB10 until it could be put on the 2020 ballot for voter approval. In the meantime, the bail bonding industry got a momentary reprieve.

Forcing the Referendum

The coalition of groups opposing SB10 had 90 days by law from the date Brown signed the bill to collect 365,880 signatures from registered California voters. If they could do that they could force a referendum vote on SB10. After only 70 days they had more than 575,000 valid signatures and filed their petition, effectively blocking implementation of SB10 in 2020.

Strange Bedfellows

It’s more than a little ironic that the bail industry and groups like the ACLU find themselves allies fighting a common enemy. But stranger things have happened. And the truth is, while they may be joined in opposition, it’s for two different reasons. The ACLU wants to get rid of cash bail but doesn’t want judges to be granted tyrannical powers. While the bail industry argues that scrapping cash bail amounts to abandoning a system that has worked (albeit imperfectly) for hundreds of years. They point to the fact that in states that have eliminated bail the rate of no-shows in court is as much as 10 times higher than in states with bail systems.

Still, whether they agree on the final shape of bail in California or not, or whether there will California's cash bail system will be eliminated in the coming years, they’re currently working together to send SB10 to the dustbin of history where it belongs. And the current odds favor them succeeding.

National Implications

The implications of what is transpiring in California will have a ripple effect throughout the nation. When combined with the failure of the attempted elimination of cash bail in New Jersey - where thousands of dangerous suspects have been set loose on the street with no way to keep track of them - it’s likely the algorithmic risk assessment system is in for a rough ride.

Including in Colorado, where rudimentary algorithms have been used by more than ten counties for several years. Those algorithms and their effectiveness have never been validated and it’s since become uncertain if they ever will be, since politicians are understandably losing their appetite for algorithms. Frankly, no one wants a repeat of New Jersey’s fugitive free-for-all, or to create all-powerful judges able to circumvent the constitution the way California has. So what shape the pretrial release system takes in Colorado remains to be seen.

Footnote: Protecting the Income Stream

In a fit of pique the ACLU recently issued a statement that distanced itself from the bail industry. In part that statement said “We will never support any effort to keep the predatory bail industry in business and will not tolerate the indefensible harm it creates.” If by “harm” they mean protecting the integrity of the legal system by promoting accountability, or doing the hard work of tracking down fugitives so that average citizens can feel safe on the street, then the bail industry certain is guilty.

But the ACLU's declaration is really more about protecting its revenue stream than standing on any particular principle. They get most of their money from foundations that are pushing for bail reform and they have to keep those contributions flowing. The bottom line however is that even they are able to recognize that SB10 and other no-bail systems are an idea whose time has come and gone.