OA Bonus Newsletter: California SB 10

We had to cut our discussion of California SB 10 for time.  We're going to pick it up in Episode 207 (or maybe 208).

But, as an extra thank you to all of our patrons, here's a sneak preview of what you need to know about it!

-Here's the full text of the bill, which has been signed into law by Gov. Jerry Brown.

-Let's talk about pretrial detention generally.  The idea is that you can deprive individuals of their liberty -- even before you've convicted them of a crime -- if (a) they're a danger to society and/or (b) there's a risk that they're not going to show up for trial.

-Don't sleep on that second criterion.  In a world with no pretrial detention, guilty individuals accused of major crimes could just flee the jurisdiction -- a risk that is uniquely more serious today than, say, in the 18th century.  So we have to do something to make sure guilty people show up for their trials, right?  And at the same time, you don't want to default to just locking people up before they've been convicted -- that's kind of the opposite of what being a free society is all about.

-So the ideal system would mostly allow criminal defendants to be released on their own recognizance but would put some mechanism in place whereby the biggest flight risks and the most dangerous defendants are secured in some way.

-As it turns out, the bail system doesn't seem to accomplish these goals.  If you can't post your bail, you don't get released.  As the bill's sponsor, Robert Hertzberg, noted, the average bail in California is $50,000 -- and that 46% of Americans can't come up with more than $400 in disposable income.  The implication is that the primary determinant of whether you get locked up before your trial is not so much whether you're a flight risk or whether you're a danger to others -- but whether you're poor.

-So:  what the bill does is completely abolish paid bail in California, and replace it with a "pretrial assessment services investigation."  Essentially (this is sections 1320.10 and 1320.11, if you're reading along), here's what happens:

1)  If you're convicted of most misdemeanors and/or you're assessed as a "low risk," you get released on your own recognizance without review by the court and "with the least restrictive nonmonetary condition or combination of conditions that will reasonably assure public safety and the person's return to court."  (Subsection (b))  And no person shall be required to pay for those conditions (subsection (d)) -- many states require defendants to pay for their own ankle bracelets and the like.

2)  On the other hand, if you're assessed as "high risk," you get detained no matter what.  (Subsection (e)).

3)  And if you're in the middle -- "medium risk" -- you get assessed by the court. to get sorted into either category (1) or (2).

-To me, this all makes an awful lot of sense.  But I should point out that just nine days ago, the ACLU pulled its support from the bill.  Their argument is that SB 10 is too highly tilted towards a presumption of pretrial detention and that they won't support a bill that doesn't guarantee "a substantial reduction in pretrial detention."

-So there you go:  SB 10 has a goal of economic fairness, but does leave the courts the discretion to assess defendants as dangerous -- and yes, that can open the door for deliberate and unconscious bias.

What do you think?  Would you support SB 10?