Read More on SB 10
Background of the NO SB 10 Campaign in California:
In California, bail is a constitutional right except when the defendant is charged with: (1) a capital crime; (2) a felony involving violence or sex and the court finds that the person’s release would result in great bodily harm to another; or (3) when the defendant has threatened another and the court finds it likely that the defendant might carry out that threat. The constitution also allows for an arrestee to be released upon a written promise to appear, known as release on own recognizance. The constitution prohibits excessive bail. (Cal. Const. art. I, § 12.)
Courts require many defendants to deposit monetary bail in order to be released from custody. Bail is intended to act as a financial guarantee to the court that the defendant will appear for all required court hearings. An arrestee may post bail with his or her own cash, or may post bail using a bail bond.
Currently, each county sets a bail schedule based exclusively on the charged offense. The bail schedule is used by the arresting officer to allow an arrestee to post bail before his or her court appearance. Once a defendant is brought before the court, there must be an individualized determination of the appropriate amount of bail. Another function of the bail system is protection of the community. Arguably, the current bail system does not actually address community safety concerns because there is no assessment of risk, at least when bail is posted before the arrestee appears before the court.
Arguments in Opposition:
“This bill is unconstitutional. This bill violates the defendant’s rights to bail by sufficient sureties which is guaranteed by the California Constitution. Bail by sufficient sureties means the defendant must have the option to secure release through a bail bond posted by a commercial surety. Several other jurisdictions have considered identical phrasing in their state constitutions and have reached the same conclusion. This bill will force defendants that could afford bail to sit in jail or to agree to onerous pretrial release conditions to get released.
“Eliminating bail as a meaningful option, as this bill does, and substituting an invasive pretrial program which includes conditions like mandatory drug testing, GPS monitoring and onerous reporting requirements, would raise serious constitutional concerns, which are exacerbated if violations of pretrial conditions would create additional criminal exposure for the accused. The Ninth Circuit has held that, in some circumstances, such pretrial release conditions are unconstitutional. In United States v. Scott, 450 F.3d 863, 874 (9th Cir. 2005), the defendant agreed to submit to home searches and drug testing in order to obtain pretrial release. But when law enforcement conducted a home search and a drug test of the defendant, the Ninth Circuit suppressed the results because these searches could not pass Fourth Amendment muster ‘under any of the three [relevant] approaches: consent, special needs [,] or totality of the circumstances.’ Id. As an individual merely accused of a crime and presumed innocent, the defendant maintained Fourth Amendment rights that the government could not violate. Even the defendant’s consent to the conditions of pretrial release could not render those conditions constitutionally legitimate because the government cannot impose ‘unconstitutional conditions’ in exchange for government benefits. Id. at 866 (citing Dolan v. City of Tigard, 512 U.S. 374 (1994)).”
Arguments in Support:
According to the American Civil Liberties Union of California, a Co-sponsor of this bill, “Groups as diverse as the U.S. Department of Justice, the Council of Chief Justices, the American Bar Association, the Movement for Black Lives, the Cato Institute, and Right on Crime have spoken out against discriminatory bail practices across the country. Here in California, in her last two State of the Judiciary addresses, Chief Justice Tani Canti-Sakauye has identified the need for pretrial reform in our state; and a bipartisan coalition of legislators, communities, families, organizations, professors, attorneys, political organizations, judges, and local officials have joined the movement for reform. The time is ripe for change.
“Successful models for reform can be found in California and other states. For example, in Kentucky, about 70% of pretrial defendants are released (68% on non-financial releases), 89% make all future court appearances, and 92% are not re-arrested while on pretrial release. Santa Clara County has implemented a successful pretrial services model and has saved $33 million in six months by keeping 1,400 defendants out of jail. Like with these systems, under the California Bail Reform Act, judges will have access to helpful tools and resources to assist them in their pretrial decision-making. These resources help to protect public safety while reducing the number of people kept in jail after arrest. It is time for California to implement these proven and cost-effective systems across the state.”