Betrayal on Bail Reform

Principles get cast aside as the new bail reform bill is drastically changed

For the past two years there has been a strong push for bail reform in California, as it is one of the biggest incarceration states in the country, a substantial portion stuck in pretrial detention because they can’t afford cash bail. Last year SB 10, a bill that would eliminate cash bail failed in the California Assembly by just a few votes even though Democrats have large majorities in the Assembly and State Senate. Up until just two weeks ago the bill was on ice. What has now passed is a substantially different bill, so different that many of the sponsors from ACLU to Silicon Valley De-Bug flipped from support to opposition when the changes came out. This massive compromise has become par for the course with California Democrats and is a deep disappointment to activists that have fought for justice on behalf of the incarcerated.

The big change to the bill is how risk assessment systems are used in determining release. Originally there was going to be important oversight over these processes to minimize if not outright eliminate racial discrimination that could arise. Activists have expressed concern about these systems that take data that is itself full of racial biases. In addition, risk assessment would only be used to decide the terms in which those arrested are released. Now, risk assessment is being used to determine whether those arrested are detained or released, oversight and data collection of this process are gone, and judges and probation officers are the ones making these decisions. Counties also have leeway to design a system that puts more people into a “high risk” category, as opposed to low or medium, making it much more likely they’re incarcerated. Under this new system, many defendants would be presumed for pretrial detention which now puts the burden on defense attorneys to argue for their release. This assumption is at complete odds with the point of bail reform to begin with.

The ACLU came out against the bill because of its lack of safeguards against racial discrimination, saying in a statement “As much as we would welcome an end to the predatory lending practices of the for-profit bail industry, SB 10 cannot promise a system with a substantial reduction in pretrial detention. Neither can SB 10 provide sufficient due process nor adequately protect against racial biases and disparities that permeate our justice system.” Silicon Valley De-Bug has this to say about the inherent racial biases of risk systems, “SB10 bill relies heavily on system contact, even including arrests, or unsubstantiated violations of retraining orders, which will only expand racial disparity. Failure to appear at court dates are rarely due to someone absconding or fleeing the county, but still get conflated with a label of “risk.” And the use of prior arrests, violations, and convictions are more reflections of the system’s historic targeting of communities of color than they are predictors of individual behaviors.”

When there has been an option to detain and incarcerate defendants, California and the country as a whole has almost always taken that option. Whether it’s harsher sentences or pretrial detention, we’ve taken an oppressive approach. In Baltimore when judges were told not to set bail for people who couldn’t afford it, they opted to simply detain more people rather than release more. One also must consider how judges could get recalled for not detaining enough people. No matter which way you look at this bill, it cannot be looked at as any type of step forward. To summarize the policy effects, it eliminates one method of pretrial detention and institutes another. As good as eliminating the cash bail system is, doing so just to find another way to indefinitely detain people before their trial means it’s a vastly inadequate policy.

The politics of this are even more frustrating. Some Democrats caved to law enforcement last year in voting no and instead of trying to pressure these right leaning Democrats, the authors made massive changes to the bill to appease law enforcement and the Judicial Council, the rule-making arm of the California court system. These changes were brought out of no where and seemingly didn’t bother to see what activists and other cosponsoring groups thought. The authors have done little to address these concerns, essentially blowing them off.

This wouldn’t be the first time California Democrats made big compromises on major legislation. Last year their cap and trade bill was a significant downgrade on their previous version that had expired, and the sanctuary state bill was also watered down, as several law enforcement agencies have still cooperated with ICE. This has been the biggest one so far and yet Democrats will still be quick to take credit for ending cash bail and being progressive leaders. It also undercuts the effort of activists seeking to push their center right representatives as they now get to claim they get to take credit for something they spent most of their time opposing. It becomes more difficult for those in their communities to point out their failings on criminal justice issues.

These types of compromises can’t be accepted anymore. Throwing marginalized people under the bus repeatedly only to take credit afterwards is a truly horrendous pattern for a party that claims to be leading and making an example for the country. It is yet another example of California being a blue state electorally but its policies making it far more to the right than its usually perceived. The people, especially the oppressed and marginalized who have often voted Democrat, deserve better after how much they’ve given. These repeated bait and switch moves will only create further resentment and come back to hurt Democrats one day.