Allow judges, not algorithms, to assess risk

The cause du jour for apparently uninformed liberals regarding criminal law is based on a principle that poor defendants without money are unjustifiably held in jail pending trial simply because they can’t afford bail and are, thus, the objects of unconstitutional discrimination by unequal treatment.

They demand the system be changed, that new “tools” such as computer algorithms be used to decide whether a defendant can be safely released without depositing bail, and they say that a pretrial assessment will ensure a released defendant won’t endanger the crime victim or other people, and will show up for every hearing and trial.

This flies in the face of the California Constitution and voters’ demand that public safety be the primary consideration.

New Jersey, New Mexico and the District of Columbia have adopted such systems, creating a presumption that pretrial “public safety assessment scores” will resolve public safety and court appearance fears of prosecutors, law enforcement officers and citizens. They call it “reform.”

In truth, this sham is one of the most dangerous and misleading legislative efforts I’ve seen in more than 50 years as a criminal and civil trial lawyer and 10 years as a California Superior Court judge.

A pretrial release system already exists in 46 of 58 California counties. Judges set bail amounts. They do so knowing that unjustified pretrial incarceration costs taxpayers money. They also know about events such as the horrible Twin Peaks homicide last month of a photographer allegedly by a felon whom the San Francisco Pretrial Diversion Project recommended for no-bail release based upon a computerized risk assessment by the Laura and John Arnold Foundation.

The Arnold Foundation is already defending a federal suit in New Jersey for a homicide allegedly by a person who had been released without bail per order of a federal judge in Houston who had adopted the Arnold Foundation system.

Historically, judges consider agency recommendations and all factors contained in Senate Bill 10, which awaits action by the Assembly. SB10 is unconstitutional and based upon the idea that judges aren’t as knowledgeable as a computer algorithm, and that the California bail system makes poverty a crime.

The alliance of California Judges and California District Attorneys associations opposes SB10. It’s also why Democratic New Jersey Assemblyman Bob Andrzejczak stated publicly in a July 3 letter to the California Assembly speaker that legislators made a terrible mistake in voting for similar New Jersey legislation last year, calling its implementation “an absolute disaster.”

SB10 would be ruinous to California’s criminal law system and to Californians.