Why Does the ACLU Hate California’s New Bail-Free System?

Now that Jerry Brown's final insult to the people of California - otherwise known as Senate Bill 10 or SB10 - is finally about to take effect it's a good time to look back at this travesty to see if we can figure out why even those knights of the so-called "progressive" movement, the ACLU, came to loathe it. It's not often that the ACLU comes out in opposition to a major piece of legislation from the left, but in this case, they made no secret of their contempt for SB10. "SB 10 is not the model for pre-trial justice and racial equity that California should strive for," they said about the anti-bail bonds law before Brown signed it on his way out the door in 2018. So what’s their problem with it?

The Bondsman Replaced by the All Powerful Judge

While some democratic lawmakers were all smiles in the wake of Brown's signing of SB10 the ACLU had a very different reaction. The actually urged Brown to veto the bill and then voiced their displeasure loudly and publicly once he signed it. So what was their beef? In essence, their major complaint is one that members of the bail industry also attempted to raise awareness of: the creation of the all-powerful judge.

Now, judges have always had immense discretion when it comes to how business is conducted in their courtroom. They have also had broad discretionary powers when it comes to determining who is released on bail and who isn't. However, in the pre-SB10 days if a judge refused bail for a defendant, he or she would have to provide legally defensible reasons why they refused bail.

SB10 not only retains judicial discretion when it comes to refusing bail, but it makes it far easier for the judge to do so. Essentially creating a system where a judge can hold pretty much anyone they want, for as long as they want, for whatever reason they want. All with very little oversight and little justification required. And that has the ACLU and scores of other civil liberties groups crying foul.

How Did This Happen?

As is usually the case with ill-considered legislation, so-called “bail reform” is little more than a vanity project promoted by freelance social justice warriors intent on creating a name for themselves. They travel from state to state, promoting the idea that bail is bad and cloak their arguments in righteous talk about how bondsmen shouldn't be allowed to profit from the criminal justice system. We saw it right here in Jefferson County, Arapahoe County, and Denver County when outsiders tried to sell Coloradans the bail reform lemon and they wisely rejected it.

Of course, since many of these so-called anti-bail “activists” have law degrees you don’t hear them complaining about the often obscene amounts of money lawyers make off the criminal justice system. But because most bail bonding agents are not lawyers, they're fair game. These self-important crusaders don't consider the societal impact of their proposals, because frankly, they don't care. All they care about is that success will give them something to add to their resume.

Because there is no need for legislation like SB10, and it only exists to pad resumes, it doesn't matter to its sponsors if said legislation is hijacked by other special interests and fundamentally changed. And that's what happened with SB10. As it worked its way through the California legislature the Judicial Council of California (JCC), (a lobbying group for the state's judges) got hold of it and added the parts that gave judges their new expanded powers.

No one tried to stop them because the original bill lacked justification to begin with. So what would it matter if it was changed? In the end, it didn't. All that mattered was that a few politicians could stand before some mics and spout a few noble sounding platitudes about justice and equality. And a few freelance social justice warriors could add a new line to their resume and move on.

Ultimately, It’s Ordinary Citizens That Pay

The entire anti-bail argument has always had more holes in it than a cheese grater. For instance, overlooked in discussions about prisoners being held because they couldn’t afford bail were the reasons many of those prisoners couldn't afford bail. Many were dangerous repeat offenders, while others had a history of jumping bail. So when they found themselves captured by the system again, their bail was set high for a good reason.

But beyond the many, strong and sensible arguments to keep the bail system lies the issue, or rather issues, related to the cost of legislation like SB10. What issues? Well, these issues…

• Who will pay to keep track of all the people released without bail? This is going to require the building of a huge and hugely expensive high tech infrastructure.
• Who will pay to track down defendants released without bail who don’t show up in court? Up til now the bail bonds agent was responsible for fugitive recovery at no cost to the state. Who will pay for this vital service now?
• What happens if, as seems likely, the number of those being held without bail actually increases due to the new powers given judges? Won’t housing more prisoners indefinitely cost more money?

SB10 was legislative poison from the day it was proposed. Now that it's set to go into effect, the people of California will be looking for someone to blame when the no-bail chickens come home to roost. At least the ACLU, like the bail industry, can say "Don't look at us."