By Kaitlin Bigger (This piece was written in Kaitlin’s capacity as DPI’s Visiting Legal Fellow during the Summer of 2018.)
On August 28, 2018, California became the first state in the country to pass a law that completely eliminates cash bail as a condition for pre-trial release. At $50,000, California currently has the highest median bail in the nation, making it extremely difficult for low income defendants to afford release before trial. As a result, over the past 40 years, the rate of pre-trial detention in California has steadily increased. Critics have long maintained that under such an unequal system, the decision to detain an arrestee depended more on the individual’s personal wealth than the charged crime itself.
The California Money Bail Reform Act (“CMBRA”) aims to force judges to consider factors other than the defendant’s fortune. However, the Act faced criticism before even coming to a vote. Notably, the ACLU switched its position on the Act in late August, shifting from support to opposition. Norma Chavez-Peterson, executive director of the ACLU of San Diego and Imperial Counties, said that the CMBRA is not bold enough, falling short of the progressive change needed to reform California’s criminal justice system. Additionally, Robin Steinberg, CEO of the Bail Project, voiced concerns that the legislation will institutionalize assessments based on prejudices that are prevalent in the criminal justice system, such as racial and socio-economical bias.
The new law signed by Governor Jerry Brown last week adopts a pre-trial release scheme similar to that implemented in Washington, D.C. back in 1992. In D.C.’s Superior Court, judges are not permitted to set financial barriers where that barrier would be the sole reason that the accused is locked up before trial. Instead, judges set pre-trial conditions based on detailed reports prepared by pre-trial officers that use seventy different factors to calculate the risk that each arrested person poses to the community if they are released awaiting trial. Although there have been a few instances of defendants released committing additional offenses before trial, overall the system has been successful. Overall, approximately 70% of defendants are released under supervision at their first appearance. Another 10% are released at subsequent hearings. In 2017, 94% of defendants were released pre-trial. In 2015, 91% of released defendants were arrest free pending trial. Eighty-eight percent of those released remained on release throughout the pre-trial process without any report of noncompliance. The statistics raise an important question – if D.C. courts have seen such success with a cashless bail system, why are due process advocates concerned about California’s version?
To answer that question, it is important to note that the major differences between the D.C. court system and the California state court system. The major concern that critics have voiced about the CMBRA is the Act’s failure to adequately curtail judicial discretion in determining who should remain in custody before trial. Starting in October of 2019, California judges will use an algorithm created by the courts in each jurisdiction to decide who is too risky to be released before trial. The fact that the algorithm will be created on a local basis is significant. There are 58 trial courts in California. On the other hand, in D.C., all trial judges are located in one courthouse, making it significantly easier to establish a district-wide culture for pre-trial release. Without a similar release culture, the concern in California is that the disparities between each jurisdiction will foster discrepancies between who is released and who is detained.
Additionally, California counties are responsible for responsible for maintaining public defender offices, and it is well recognized that these offices are underfunded and understaffed. In contrast, Public Defender Service for the District of Columbia is funded by Congress, and has a reputation for providing high-functioning representation to indigent clients. As a result, defendants in D.C. have a greater chance than defendants in California of receiving competent representation at pre-trial hearings to adequately confront any influence of bias in the assessment process.
Finally, the most significant difference between California and D.C. in this area is who does or will be making the risk assessments. In California, the CMBRA gives the state Judicial Council and the courts themselves the power to classify defendants based on the risk level they present . In D.C., an independent federal entity, the Pretrial Services Agency (“PSA”), formulates release recommendations for both the Superior Court of D.C. and the United States District Court for the District of Columbia. The PSA looks at numerous factors to generate a score that assigns the defendant to a risk category that have corresponding supervision assignments to mitigate the risk of failure to appear and rearrest. A judge then uses the release recommendation generated by the PSA, along with arguments made by the prosecutor and defense attorney, to make his or her pre-trial release decision. The Agency’s independence and experience help safeguard the release assessments from judicial bias, and prevent the court itself from having too much power over the decision.
At this juncture, due process and criminal justice reform advocates are right to be concerned about the possible ramifications that the CMBRA will have on pre-trial detention in California. As demonstrated by highlighting the differences between the D.C. and California systems, there are numerous changes that need to be made to the CMBRA itself and California’s justice system as a whole to protect against the high risk of judicial bias in pre-trial release decisions. For now, the hope is that the CMBRA will open the door to further criminal justice reform in California, and encourage other states to reevaluate their use of a cash bail system.