San Mateo County preparing for end of money bail system

Alleging the state’s current bail system punishes low-income individuals by forcing them to choose between staying in custody, paying a bail bonds agent or pleading guilty be able to return to their homes, state Sen. Robert Hertzberg, D-Van Nuys, and Assemblyman Rob Bonta, D-Oakland, have for the past two years been shaping a bill allowing defendants to be held in custody only if they pose a significant risk to public safety or of failing to appear in court.

Set to take effect in October of 2019, Senate Bill 10 marks a transformational step in correcting fundamental injustice by abolishing money bail and replacing it with a risk-based system, said Bonta, who authored mirror legislation in the state Assembly.

“For too long, our system has allowed the wealthy to purchase their freedom regardless of their risk, while the poor who pose no danger languish in jail,” he said in an Aug. 28 press release after the governor signed SB 10. “No more. Freedom and liberty should never be pay to play.”

Introduced by Hertzberg in December of 2016, the bill was contested by both the American Civil Liberties Union and the American Bail Coalition by the time it passed both houses. Though they supported previous versions of the bill, it drew criticism from American Civil Liberties Union chapters across the state for not promising a substantial reduction in pretrial detention and not sufficiently addressing racial bias in pretrial decision making, according to a press release.

The American Bail Coalition argued the bill not only upends the state’s bail system, but also threatens an individual’s right to bail under the California Constitution. The group announced support of a petition to reverse SB 10 shortly after the governor signed the bill, according to a press release.

Defense perspective

For defense attorney Lisa Maguire, who is also assistant chief defender for the county’s private defender program, the transition away from keeping those who can’t afford to post bail in custody is a good one.

“We certainly don’t want to ever think that somebody is going to be incarcerated because they’re unable to come up with money,” she said. “Of course, that is of concern, so we’re glad to see them get rid of the financial component of the evaluation.”

Knowing well there are many charged with low-level crimes who have remained in custody after their arrests because they can’t afford to post a $5,000 bail bond, Maguire expected the changes to benefit those who have been disadvantaged by the current bail system. While the bail alone can be insurmountable for some, Maguire added those who are able to post bail often rely on the assistance of a family member or friend who is able to work with a bail bonds company to enter into a contract and pay the required fees.

But she acknowledged how exactly it would affect the broad base of clients county defense attorneys serve is difficult to predict at this stage, as county criminal justice officials await word from the state’s Judicial Council, the policy and rule-making body of the California court system, on how an individual’s risk can be assessed under the new system.

Though she is hopeful clients will fare better under the system to replace bail, Maguire said she has heard of concerns it will give judges too much discretion when it comes to determining whether someone is released or stays in custody as they await trial. Those deemed to be of medium or high risk to the general public or to fail to appear in court are set to go under review by the agency providing pretrial assessment services per the new system, which will ultimately determine whether they are released or detained in custody as their cases are adjudicated, according to the bill’s text.

Because there may be individuals charged with medium- or high-level crimes who could have posted bail under the current bail system, Maguire could foresee some of those facing more serious charges may feel disadvantaged by the changes to take shape next year, which wouldn’t afford them the option to post bail if a judge determines they should be kept in custody.

“I would say there’s definitely a concern that it’s not going to be the outcome that people had envisioned,” she said.

Change in support, opposition

Having harbored concerns about earlier versions of the bill relying heavily on a risk assessment tool to determine whether an individual is released, District Attorney Steve Wagstaffe favored recent amendments to the bill affording judges more discretion to make a determination on one’s custody status. He said the changes augmenting a judge’s discretion as compared to previous versions of the bill were behind the California District Attorneys Association’s decision to move its position from opposed to neutral on the bill in the weeks leading up to the state Legislature’s vote.

“I still believe that one of the key components of a good criminal justice system is faith that judges do the right thing,” he said.

San Francisco Public Defender Jeff Adachi was among those who supported a previous version of the bill but were later dismayed by the revised version passed by legislators last week. Adachi called more recent amendments to the bill shocking, noting they situate the power to detain a person close to judges instead of using a risk assessment tool and following very strict procedures before a decision is made to keep someone in custody.

“When we began working on bail reform, the basic principle was to create a rational process by which people were released and to eliminate racial bias and human error,” he said. “We see that this new law will give too much power to judges and our fear is that more people will be held in custody.”

New system

Wagstaffe said one of the biggest changes county prosecutors will have to contend with under the new system is preparing for hearings in which they will assemble a body of evidence proving why they believe an individual should remain behind bars as they await their court proceedings. He said the hearings are set to take place within days of someone’s arrest, and the burden will be on prosecutors to prove preventative detention is appropriate for those charged with more serious crimes.

“We have a whole new set of hearings that we have to conduct,” he said. “It takes substantial evidence to show that they would be danger to the community.”

Maguire also acknowledged the timeframe set for the new hearings is fairly short, allowing defense attorneys and prosecutors only three days in most situations to make a case about an individual’s background. She noted the challenges defense attorneys face in getting information about a defendant’s case the day they are arrested, and said defense attorneys will be thinking about ways to expedite information gathering so they can present a comprehensive picture of an individual within the required timeframe.

Though she acknowledged there may be cases in which a defense attorney can request their client’s detention status be brought before a judge again should someone’s circumstances change, Maguire noted that for the most part, those facing more serious charges now only have one opportunity to make their case to be released since bail is no longer an option.

“People always had bail,” she said, referring to the current bail system. “If nothing else, they could post the bail. … With the new law, if you’re unsuccessful, that person has no other way to get out of custody … I think the stakes have gone a lot higher in terms of the outcome of the hearing.”

To be able to implement the new system, Chief Probation Officer John Keene said he will need to hire additional staff to have probation officers available 24 hours a day to ensure individuals are assessed within the timeframe required by the law. Because the department he oversees currently provides the county’s pretrial services, Keene said eight to 10 full-time probation officers are able to carry out the department’s adult pretrial services currently. How many more staff members he will need to hire may become clearer in January when state officials are expected to make information on approved risk assessment tools and the state funding to be dedicated to these changes, he said.

Because San Mateo County criminal justice officials already work collaboratively, Keene expected the county to be well-positioned to make the shift to a new pretrial system in the coming months. He looked to the changes to be a step toward ensuring an individual’s finances are not the primary factor considered in their custody status, and was pleased the bill would not pass the costs of any nonmonetary conditions, such as electronic monitoring devices, onto the accused. He also expressed gratitude the system would not take effect until next year, which gives county officials time to explore what types of non-monetary measures, which could also include reporting to a probation officer daily, may be used in the county.

“This is an incredibly historical sea change for our system,” he said. “There’s a lot of work in the next several months.”

Keene noted the combination of static and dynamic factors to be considered as factors in the new system’s risk assessments are likely to provide a more accurate review of a person’s risk. While the number of convictions or times someone has previously appeared in court provide one side of the story, Keene said asking individuals whether they have family ties in the community or their thoughts on an alleged crime can provide more information on a person’s attitude and personality.

“That gives you a real sense in terms of an individual’s mindset, which really is more indicative of a person’s risk,” he said.

Keene said it’s too early to tell what impact the changes will have on the number of people held in custody, but he is hoping the changes don’t negatively affect county jails across the state. Wagstaffe estimated that only some 30 percent of those in county jail cells have been convicted and sentenced for crimes, and that others are awaiting further court proceedings.

Clear impact

While most of the major actors in the county’s criminal justice system say the effects of the new law remain to be seen, for former bail bondswoman Corrin Rankin, the law’s impact on the bail bonds industry has been clear for some time. With concerns about the burden the changes will have on individuals charged with crimes as well as people who have devoted their lives to the bail bonds industry, Rankin said she has testified before the state Senate’s public safety committee and attempted to meet with legislators to shape the bill.

But she said the voices of bail bonds agents have consistently been left out of the conversation, and the bill’s impending success is partly behind her decision last year to close Out Now Bail Bonds, a business she owned in Redwood City since 2008.

Rankin said news of the bill’s passage hit the bail bonds community hard, with several of her friends lodging concerns about their financial prospects now that they will be required to wind down their business. She feels the bail bonds industry has been portrayed negatively as a business that benefits financially from the misfortunes of others as SB 10 took shape in the last two years, a perception she said must change if bail bonds agents are to move forward from the disruption of their businesses, which she noted has provided Californians the opportunity to exercise their right to post bail for decades.

“There has to be an opportunity for us to move on with our lives somehow, but if this negative perception still exists, we’re never going to be able to pick ourselves up out of the devastation that the government has caused us,” she said. “How are we going to overcome it? What’s the remedy for us?”

anna@smdailyjournal.com

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