All California counties would have to offer an alternative to cash bail under details of a bill that two Democratic lawmakers are revealing Monday.
The proposal, first announced by Assemblyman Rob Bonta and Sen. Bob Hertzberg in December, is sure to set up a big legislative fight in the Capitol. In interviews with KQED News, both lawmakers said they are aiming to make the criminal justice system more effective and fair by ensuring that jails aren't packed with people awaiting trial who simply couldn't afford to post bail.
AB 42 would require, in most cases, that counties conduct a pretrial risk assessment after someone is arrested. That scientifically based assessment would consider not just the current accusations, but the arrestee's entire history and life situation. It would also include recommendations to a judge for their conditions of release. A judge would consider the report and decide whether to release the person, and if so, what conditions they will have to abide by.
Those conditions of release could include ankle monitoring or checking in with a pretrial services officer. Corrin Rankin of the California Bail Agents Association said this is basically like putting people on parole who have not been convicted of a crime. She said the part of what works about California's current money bail system is that bail agents are completely outside the judicial system. They have no stake in an individual's guilt or innocence.
"It’s beside the point," she said. "Our job is to make sure people go to court so that they can have their day. So that justice I guess can be served. Whatever that may be in any particular case. Our only job is to make sure people go to court, and we do it well."
People accused of violent felonies such as murder would not be eligible for the program, known as pretrial release. If a judge decides pretrial conditions won't guarantee that a defendant will come back to court, the bill allows judges to set money bail at the "least restrictive level."
Bonta, a Democrat representing Oakland, said the current money bail system is broken and "punishes poor people for being poor."
He and Hertzberg said that the only considerations should be whether someone is a risk to public safety or at risk of fleeing to escape the charges.
"Folks can lose their jobs, because they can't show up to work because they are detained. They can lose their children, if they are single parents and there’s no one who can take care of their children while they are being detained," Bonta said. "And folks who are detained pretrial are much more likely to plead to crimes just so they can get out."
Rankin of the bail industry said she believes these lawmakers have good intentions, but that they are trying to fix a problem that doesn't exist. She said defendants can already request a bail hearing with a judge to lower their bail amount.
Hertzberg, however, noted a recent study by the Federal Reserve which showed that about 46 percent of Americans don't have enough money to cover a $400 emergency expense.
"Clearly public safety is critical, but we are also trying to look at the injustice, that if you don't have a few hundred bucks you can't get out and your whole life is turned upside down," he said.
Hertzberg said the change could make California safer, noting that many people convicted of crimes are released early from jails around the state because jails are overcrowded with pretrial detainees.
"Is this about size of wallet or the size of your risk to society?" he asked. "That’s what should be measured."