Bail Reform Bills In State Legislature Strongly Opposed By Alliance Of California Judges

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Assembly Bill 42 and Senate Bill 10 Would Undermine Judicial Authority andCreate Increased Risk to Public Safety

The Alliance of California Judges announced their strong opposition to twin bills currently pending in the California legislature that would radically alter the state’s current bail system.

Assembly Bill 42 and Senate Bill 10 are identical bills that ostensibly seek to eliminate all financial conditions of bail, while implementing a “risk-based” computer system to inform judges which defendants they should release on their own recognizance and who to keep in jail.

However, the Alliance of California Judges warns that the proposed changes are far too radical and would have disastrous ramifications for court system, as well as the public-at-large. The organization which is comprised of more than 500 judges and retired judges from across the state issued their statement as the bills continue to work their way through the California Assembly and Senate.

“These twin bills go way too far, and their effect would be a near shutdown of the court system and a serious risk to public safety,” said Sacramento County Superior Court Judge Steve White, President of the Alliance of California Judges.

SB 10 (authored by Bob Hertzberg (D-Van Nuys)) and AB 42, authored by Rob Bonta (D-Oakland) were presented as providing for the creation of a fairer system in which the poor cannot be held in jail indefinitely, while wealthier individuals are allowed to “buy” their way to freedom.

But a key concern expressed by Judge White is that the essence of “these bills run counter to the letter and the spirit of the California Constitution…”

Judge White also said, “Our member judges make thousands of rulings on bail issues every day. We recognize that not everyone has the ability to post bail pending trial. We address that concern by adjusting bail amounts and releasing defendants on their own recognizance or on pretrial release under appropriate circumstances. We know that our current bail system needs further reform. But the proposals contained in these bills are simply too drastic, and the effects on public safety and court congestion could be catastrophic.”

The proposed bills strip judges of the authority to set bail in the majority of cases and they substitute a different set of priorities for judges to follow in those cases for which they could still set bail. Judge White says this new vision for bail cannot be reconciled with the Victim's Bill of Rights and Marsy's Law according to the state’s constitution.

As amended by Proposition 8, the Victim's Bill of Rights specifies, “In fixing the amount of bail, the court shall take into consideration the seriousness of the offense charged, the previous criminal record of the defendant, and the probability of his or her appearing at the trial or hearing of the case.” Prop 8 passed with 83 percent of the popular vote in 1982.

Meanwhile, Proposition 9’s “Marsy’s Law,” was passed by voters in 2008. It mandates, “In setting, reducing or denying bail, the judge or magistrate shall take into consideration the protection of the public, the safety of the victim, the seriousness of the offense charged, the previous criminal record of the defendant, and the probability of his or her appearing at the trial or hearing of the case. Public safety and the safety of the victim shall be the primary considerations.

A person may be released on his or her own recognizance in the court's discretion, subject to the same factors considered in setting bail.”

Judge White notes that AB 42 and SB 10 are well-intended attempts to address the fact that the bail system affects persons of differing income levels differently. But he adds that nearly every county now has a pretrial services division in place to screen defendants and recommend their release on appropriate conditions, without bail, when doing so does not pose a serious danger to the public or a significant risk of non-appearance.

He strongly urged that AB 42 and SB 10 be reconsidered and substantially amended.

Additional concerns noted by Judge White include:

The bills would heighten the risk to public safety
Those arrested for selling drugs, committing identity theft, vandalizing homes and businesses, stealing huge sums of money, or burglarizing dozens of businesses would all presumptively be granted pretrial release—without having to appear before a judge, post bail or submit to any conditions upon release. These bills also inexplicably exclude residential burglary from the list of crimes for which arrestees are not to be considered for release without judicial authorization.

These proposals would create more congestion in our busiest courts.
Under the proposed legislation, judges in most cases could set bail or impose pretrial release conditions such as electronic monitoring only after a hearing. We can expect that prosecutors will be requesting lots of these hearings. Our arraignment courts—already the busiest courts in the entire judicial system—would become completely clogged with bail hearings.

The bills completely upend the way in which we handle arrest warrants, to the detriment of the court system and the arrestees themselves.
By eliminating the judge's ability to set a bail amount when issuing a warrant, the proposed legislation virtually ensures that wanted suspects will not be brought to justice in a timely manner, if at all. Moreover, those arrested on warrants could not be released until a judge makes an individualized ruling that considers the arrestee’s ability to pay. Arrestees who might otherwise simply pay their bail and be released from custody will instead languish until their cases can be heard.

The bills place an undue—and wholly unrealistic—burden on the prosecution.
The bills would require in some cases that the prosecuting agency be prepared for a contested hearing with live witness testimony in less than 24 hours, at risk of a dangerous felon being set free. The bills also create a presumption of release pending trial that law enforcement will seldom be able to rebut within the timelines contemplated by the bill, even when the court is faced with a violent criminal facing serious felony charges.

The bills inject the concept of the presumption of innocence into a context in which it simply doesn’t belong.
The proposed legislation would require judges to consider the presumption of innocence in making pretrial release decisions. This provision makes no sense. While the presumption of innocence is at the heart of our criminal justice system, it’s a concept that applies at trial, not in the context of rulings on bail. Both the United States and California Supreme Courts have long maintained that the presumption of innocence “has no application to a determination of the rights of a pretrial detainee during confinement before his trial has even begun." (Bell v. Wolfish (1979) 441 U.S. 520, 533; see also In re York (1995) 9 Cal.4th 1133, 1148.)

About the American Bail Coalition
The American Bail Coalition is dedicated protecting the Constitutional right to bail and the promotion, protection and advancement of the surety bail profession in the United States. Comprised of the nation’s largest surety insurance companies, ABC works with local communities, law enforcement, legislators and other criminal justice stakeholders to utilizes its expertise and knowledge of the surety bail industry to develop more effective and efficient criminal justice solutions.

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MediaVista Public Relations:                
Elliott Chang
(323) 938-5879
Cara Downs
(323) 316-5228

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Elliott Chang
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