The bail empire strikes back
It is no surprise that the bail bond industry is seeking to overturn historic legislation to eliminate money bail from the California justice system. SB 10, signed into law this week by Gov. Jerry Brown, requires judges to decide whether to release criminal defendants before trial or keep them locked up based on their risk to public safety and the probability they will come to court at the appointed time. Personal or family wealth — the ability to pay a bail bond company — will no longer be a factor. As a result, the new law effectively puts bail agents out of business. They won’t go quietly.
A coalition of industry associations on Wednesday began a drive to repeal the measure. Members can be expected to repeat the specious arguments they have made over the last two years as Sen. Bob Hertzberg (D-Van Nuys) and Assemblyman Rob Bonta (D-Alameda) shepherded their bills through the Legislature: Defendants who have money for bail are less dangerous than those who don’t (that’s nonsense); the Constitution requires money bail (it doesn’t); and one’s ability to put up money is a rational way to determine whom to keep in jail (it most definitely is not). But in the end their goal is to preserve a predatory industry that forces defendants to go into debt merely to be treated as innocent until proven guilty.
The referendum drive is reminiscent of one the plastic bag industry put before voters two years ago after the governor signed a law outlawing free single-use plastic bags at large retail stores. The bag manufacturers got enough signatures to suspend the ban temporarily but ultimately were defeated by voters, who saw through their arguments. Let’s hope the attempted bail referendum fails at an even earlier point in the process and that backers won’t get the 366,000 signatures they need in the next three months to prevent the law from taking effect on schedule in October 2019. If they succeed, the referendum would be on the 2020 ballot.
The stark fact is that the industry can afford an expensive signature-gathering campaign. It has at its disposal lots of cash it has squeezed from families who desperately gave over whatever they had in order to keep their loved ones out of jail while they were waiting for trial.
One crucial question is whether the bail bond empire will get help from its polar opposites: activist groups that generally despise the industry but also dislike SB 10 because it’s not the reform they wanted.
Such a devil’s bargain would be reprehensible and destructive, yet it’s a possibility. Activists are just fine with eliminating bail — indeed, it was at least half of their ultimate goal — but they are disappointed that the new law does not, on its face, guarantee that fewer people will be in jail before trial because it allows judges to order detention for a large number of defendants. Although activists aren’t likely to join forces openly with the industry, they just may quietly cheer on the law’s repeal while offering their own, more sweeping, voter initiative to severely reduce judicial power and limit the use of tools such as computer algorithms that assess the risk of releasing a defendant before trial.
That would be a tragic mistake. The elimination of money bail is a landmark development that deserves broad support even if it falls short in significant ways. It is a stunning victory over the powerful bail bond industry. That’s a win that must not be reversed.
Unlike the industry, activists do make some valid points about SB 10. The presumption of innocence and release from jail after arrest should be the rule, and pretrial detention should be the exception, used only when the probability is high that defendants would flee or harm innocent people. A study by the leaders of California’s judicial branch finds that under the new law the number of people held pretrial will drop significantly, but activists are correct when they say the number could conceivably rise instead.
Getting the right outcome will depend on continuing work statewide, in the counties and in the courts. It will require open, inclusive, transparent processes to write protocols and set standards for judges, probation departments, boards of supervisors, public defenders and all others who will play significant roles in the new no-bail pretrial system.
Principled activists should be deeply involved in those discussions. Pretrial justice reform will be a long (but righteous) slog, not a one-time victory or defeat in Sacramento or at the polls. The best thinkers and most passionate advocates for justice will be needed at the table.