Capitol Beat – The Cost of Cashless Bail

Aaron Read and Randy Perry
Legislative Advocates
Aaron Read & Associates, LLC

June Rodgers’ son was shot 22 times on April 9, 2017. Just four days earlier, her son’s killer, Jules Black, a convicted felon who was arrested for illegally carrying a 9 mm pistol, was released from jail as a result of New Jersey’s Bail Reform and Speedy Trial Act. After a lengthy assessment screening developed by the Arnold Foundation, Black was not considered a threat to society or likely to commit another crime prior to his hearing on the possession charge. The prediction couldn’t have been more wrong, and it cost June’s son, Christian, his life.

Following in New Jersey’s footsteps, our state legislators are faced with the decision to reform the bail system in California. Like in New Jersey, the reform removes monetary bail and establishes an assessment tool to determine whether or not a criminal must remain detained until their court date or be released under their own recognizance. There is also talk about California using the same, and obviously flawed, Arnold Foundation pre-trial assessment tool. Although changes were made in the assessment within a few months after Rodgers’ death, we can’t help but ask ourselves, can one assessment truly determine whether or not a criminal will commit another crime if released without bail? Is that something a series of questions can legitimately predict?

California’s bail reform bill, SB 10, authored by Senator Robert Hertzberg (D-Van Nuys), passed through the Assembly Public Safety Committee on a 4–2 vote with one Assembly member abstaining. There were many concerns up for deliberation during the hearing, and one Assembly member set an expectation for Hertzberg, noting that he should clarify the bill moving forward to address the Committee’s concerns and consider his bill a work in progress.

PORAC remains strongly opposed to SB 10. PORAC leadership, along with the team at Aaron Read & Associates (ARA), continue to work with a coalition of law enforcement and crime victim groups to fight this dangerous bill. The author of the bill has not accepted the amendments that law enforcement has offered.

PORAC is opposed to SB 10 for the following reasons:

  • SB 10 retains probable release for significant crimes, including domestic violence and certain crimes involving human trafficking.
  • Although SB 10 allows the prosecution to make a motion seeking pretrial detention in limited felony cases, the timelines created by SB 10 make those hearings unrealistic and unspecified.
  • As currently written, SB 10 imposes unrealistic responsibilities and expectations on the pretrial services agencies that courts and district attorneys would rely on for information in making decisions. Police reports and investigations may be ongoing, and victims may still be undergoing medical treatment, sexual assault examinations and police interviews. We cannot expect victims still recovering from trauma to testify in contested hearings within hours of an incident. Without this relevant information, the court cannot make a reasonable verdict regarding public safety, the victim and the defendant.
  • Finally, we are concerned that the permissive structure for release under SB 10 will be insufficient to ensure that the accused return for their court date.

Strategy

On August 4, the PORAC Board voted to introduce a new bail reform bill written by Los Angeles County District Attorney Jackie Lacey. PORAC, along with the California District Attorneys Association, California Police Chiefs Association, Crime Victims United, and other law enforcement organizations are co-sponsoring this legislation, which works to reasonably reform our current bail system without jeopardizing the safety of communities. Earlier this year, Lacey put together a bail task force within her department in an effort to distinguish areas in our bail system where the assessment tool can be used, without eliminating monetary bail altogether. The information gathered was written into the bill. The language has been approved, and we are currently seeking a bill into which our new language can be amended.

PORAC understands that our bail system needs improvement. However, SB 10 fails to find a balance between the need for reform, public safety and the protection of victims. Our bill finds that balance without creating the overly burdensome, costly and complicated system proposed by SB 10.

New Jersey’s bail reform took effect this January, and we already have proof of its deadly implications. Today, June Rodgers is standing up against cashless bail in honor of her late son. With the assistance of Duane Chapman, also known as Dog the Bounty Hunter, the grieving mother has filed a lawsuit against New Jersey Governor Chris Christie, New Jersey Attorney General Chris Porrino and the Arnold Foundation.

Finally, one of the major supporters of New Jersey’s cashless bail program, Assembly Member Bob Andrzejczak, has officially written a letter of opposition to SB 10 in California. In it, he specifically states that he was also told that the new system would apply only to low-level offenders.

“The reality is that dangerous and career criminals are released daily within hours of arrest. We should never have considered free bail to those who commit crimes where a citizen has been victimized,” Assembly Member Andrzejczak said.

Capitol Beat – The Bail Reform Battle

Aaron Read and Randy Perry
Legislative Advocates
Aaron Read & Associates, LLC

Bail reform is expected to be in the center ring of the criminal justice reform battles this legislative session. In April, the Assembly Public Safety Committee hearing overflowed into the halls of the Capitol. The crowd was what you would imagine: social justice organizations, law enforcement and an impressive number of bail bond agents, led by celebrity bounty hunters Duane “Dog” and Beth Chapman.

Bail, in one form or another, has been a release mechanism since medieval England. Many think it originated as a way for rulers to gain personal wealth. However, when America adapted the bail system, it was a time when the New World had just been discovered and crime was on the rise. New criminal processes, such as bail, were put in place as a deterrent to keep individuals from committing crimes. It was even written into the U.S. Constitution.

Over 60 years ago, the U.S. Congress passed the Bail Reform Act of 1966, which allows for a defendant facing trial for a non-capital offense to be released “on his personal recognizance.” In 1970, the District of Columbia addressed the issue of defendants released for non-capital offenses who were committing more crimes while on bail. In 1984, the federal justice system agreed that the public’s safety should be the guideline for releases. The Bail Reform Act of 1984 states that a person can be detained without bail if he/she:

  • Poses a risk to the community
  • May intimidate jurors or witnesses, or otherwise obstruct justice while out on bail
  • Commits a violent or drug-related crime, an offense carrying a penalty of death or life in prison, or any felony while already having a serious criminal record

Outside of these reforms, the bail system in our country has remained fairly unaltered since its origin. Beginning in 2012, California legislators have been unsuccessfully attempting to pass legislation to reform bail. However, these attempts have been more than “reform”; they were written to remove monetary bail altogether.

This year takes us down the same path. There are two identical “cashless” bail reform bills that have been introduced: AB 42 by Assemblymember Rob Bonta (D-Alameda) and SB 10 by Senator Bob Hertzberg (D-Van Nuys). The purpose of these bills is to “reduce the amount of people held in pretrial detention because of their inability to afford money bail and to require each county to establish a pretrial services agency that meets certain specifications.”

The pretrial services agency will track and conduct a risk assessment on a person arrested and booked into jail, but the person shall not be considered for release until he or she appears before a judge or magistrate for a hearing. Plainly speaking, these bills will shift the power from judges to newly created pretrial agencies in determining whether or not a defendant is a threat to the public. If the defendant is not deemed dangerous by the agency, they will be released.

This bill specifies that a person may be detained pretrial after a detention hearing if the court makes the following findings, which are consistent with the California Constitution:

  • The defendant has been charged with a capital crime, and the facts are evident or the presumption great
  • The defendant has been charged with a felony offense involving an act of violence on another person or a felony sexual assault offense on another person; the facts are evident or the presumption great; and the court finds, based upon clear and convincing evidence, that there is a substantial likelihood the person’s release would result in great bodily harm to another person or persons
  • The defendant has been charged with a felony offense; the facts are evident or the presumption great; and the court finds, based on clear and convincing evidence, that the person has threatened another with great bodily harm in the charged case and that there is a substantial likelihood that the person would carry out the threat if released

The authors of the bills are making an argument that the bail system is discriminatory. They believe that too many poor people are being held in jail because they simply cannot afford to get out, while the rich have the means to be released immediately. The opposition questions these pretrial agencies and the assessment process of determining eligibility. We want to know how these agencies and programs will succeed in guaranteeing the safety of our families.

In existing law, the bail process has promised to make public safety the primary consideration. PORAC understands that the bail system could be improved, but we also believe that removing monetary bail from our criminal justice system will inherently put our communities in danger. PORAC is opposing both measures.