California will become the first state to eliminate bail for suspects awaiting trial and replace it with a still murky risk-assessment system under a bill signed Tuesday by Gov. Jerry Brown.
Brown’s signature gives the state’s judicial council broad authority to reshape pretrial detention policies ahead of the new law’s October 2019 start date.
Based on the council’s framework, each county’s superior court will set its own procedures for deciding who to release before trial, potentially creating a patchwork system based on where a suspect lives.
Most suspects accused of nonviolent felonies will be released within 12 hours of booking, while those charged with serious, violent felonies will stay in jail before trial.
The new law gives judges wide latitude to decide what to do with other suspects based on their likelihood of returning to court and the danger they pose to the public.
It’s still unclear which suspects would fall into each category or how long they might spend in jail.
California’s new law is the latest development in the nationwide debate over bail, which many people say unfairly punishes people for being poor. Other states including New Jersey, Alaska and New Mexico have overhauled their bail systems, although no other state has completely eliminated bail.
Advocates of the California law say incarceration should depend on a suspect’s risk to public safety, not the ability to pay.
“Our path to a more just criminal justice system is not complete, but today it made a transformational shift away from valuing private wealth and toward protecting public safety,” the law’s author, state Sen. Bob Hertzberg, a Democrat from Van Nuys, said in a statement.
Opponents, including some social justice groups, argue the new law gives judges too much power to decide who should be released.
Gina Clayton Johnson, executive director of Essie Justice Group, which advocates for women with family members in prison, says she worries the policy will lead to mass incarceration. She said there’s not enough protection in the law to ensure it doesn’t perpetuate racial bias in the criminal justice system.
“This is a bill that has confused a lot of people because it does do something very positive, which is to end the bail industry,” she said. “Yet what we had to trade for that win actually sets us further back.”
Others, meanwhile, argue it will allow dangerous people to go free and perhaps not return for trial.
Such arguments are playing out in New Mexico after a judge decided to allow the release of several members of an extended family accused of child abuse at a desert compound.
The judge said her decision was tied to recent reforms that set a high bar for holding suspects without bail.
Her decision has caused political uproar. Prosecutors have alleged the group was training children to use firearms for an anti-government mission and are fighting to keep the suspects from being released.
New Mexico voters approved an overhaul of the pre-trial release system in 2016.
Other states have been watching California as they weigh overhauling their bail systems, said Margaret Dooley-Sammuli, who works on criminal justice issues for the American Civil Liberties Union.
The ACLU has been in talks with more than 30 other states about bail overhaul and is now advising them to avoid using California as a model because its system won’t ensure due process and won’t prevent racial bias, she said.
In California, overarching rules will be set by the judicial council, the policy-making body for California’s courts headed by the state’s chief justice.
The new law lets counties set up their own pretrial assessment agencies or run their risk assessment programs through existing probation departments.
It gives officials 24 hours to determine whether a suspect should be released before trial. That time can be extended by 12 hours if necessary.
Some criminal justice reform advocates worry defendants will spend weeks in jail while their lawyers try to prove they should be set free.
