SACRAMENTO — California will become the first state to eliminate bail for suspects awaiting trial and replace it with a still murky risk-assessment system under a bill signed Tuesday by Gov. Jerry Brown.
Brown’s signature gives the state’s judicial council broad authority to reshape pretrial detention policies ahead of the new law’s October 2019 start date.
Based on the council’s framework, each county’s superior court will set its own procedures for deciding who to release before trial, potentially creating a patchwork system based on where a suspect lives.
Most suspects accused of nonviolent felonies will be released within 12 hours of booking, while those charged with serious, violent felonies will stay in jail before trial.
The new law gives judges wide latitude to decide what to do with other suspects based on their likelihood of returning to court and the danger they pose to the public.
It’s still unclear which suspects would fall into each category or how long they might spend in jail.
California’s new law is the latest development in the nationwide debate over bail, which many people say unfairly punishes people for being poor. Other states including New Jersey, Alaska and New Mexico have overhauled their bail systems, although no other state has completely eliminated bail.
Advocates of the California law say incarceration should depend on a suspect’s risk to public safety, not the ability to pay.
“Our path to a more just criminal justice system is not complete, but today it made a transformational shift away from valuing private wealth and toward protecting public safety,” the law’s author, state Sen. Bob Hertzberg, a Democrat from Van Nuys, said in a statement.
Opponents, including some social justice groups, argue the new law gives judges too much power to decide who should be released.
Gina Clayton Johnson, executive director of Essie Justice Group, which advocates for women with family members in prison, says she worries the policy will lead to mass incarceration. She said there’s not enough protection in the law to ensure it doesn’t perpetuate racial bias in the criminal justice system.
“This is a bill that has confused a lot of people because it does do something very positive, which is to end the bail industry,” she said. “Yet what we had to trade for that win actually sets us further back.”
Others, meanwhile, argue it will allow dangerous people to go free and perhaps not return for trial.
In California, overarching rules will be set by the judicial council, the policy-making body for California’s courts headed by the state’s chief justice.
The new law lets counties set up their own pretrial assessment agencies or run their risk assessment programs through existing probation departments.
The legislation gives officials 24 hours to determine whether a suspect should be released before trial. That time can be extended by 12 hours if necessary.
Some criminal justice reform advocates worry defendants will spend weeks in jail while their lawyers try to prove they deserve to be set free.
Napa County has been using its own assessment tool to determine whether pre-trial suspects can be released without bail.
Most mornings in Napa County, probation officers receive a list with the names of people arrested in the last 24 hours. They head downstairs to the jail and ask a few questions to those who are locked up.
Each answer to an officer’s questions is assigned a number. The officer adds up a defendant’s score — intended to predict whether that person will skip a court date or commit a crime if released — and writes an accompanying report for the judge, who will decide which defendants to release by the end of the afternoon.
Napa’s specific questionnaire, called the Ohio Risk Assessment System (ORAS) pretrial tool is one of many pretrial risk assessments used by counties across the state. San Francisco and Santa Cruz use the Public Safety Assessment (PSA), which was developed by the Laura and John Arnold Foundation. Some counties have worked with research organizations to design their own pretrial risk assessment tool.
Using different tools isn’t necessarily a problem, said Marie VanNostrand, the co-founder of Luminosity, a company that focuses on developing data-driven solutions for criminal justice problems.
“To me, it almost doesn’t matter what risk assessment is used, as long as it’s valid and it’s accurately classifying the risk in an unbiased way,” VanNostrand said.