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End of cash bail system sparks questions on new risk assessment system

SB10 bringing the end of the cash bail system, however, the new risk assessment system is still sparking some questions.
Credit: Brian A. Jackson
Gavel, scales of justice and law books

The cash bail system is coming to an end in California and will be replaced with a risk assessment system after SB10 was signed by Gov. Jerry Brown on Tuesday.

The requirements of the bill come into effect on October 1, 2019.

Concerns reached the State Assembly Appropriations Committee in mid-August. Those concerns included people with money being able to confront criminal charges while free from jail, and those who cannot afford bail have to remain there.

Arguments have also included that the bail system itself does not address community safety concerns, because there is no risk assessment when bail is posted before a defendant appears in court.

The Judicial Council of California will be playing a part in implementing the new system, from adopting a proper use of pretrial risk assessment information to collecting and reporting data. The new system has been supported by the Judicial Council, however, some questions on the new policy remained by community members.

4 community questions brought to the Judicial Council

ABC10 received questions from commenters on social media and brought them to the Judicial Council of California for responses regarding SB10.

1. Are people previously eligible for bail no longer eligible? For people with a violent felony and $1 million bail, would they no longer be eligible for bail?

According the Judicial Council, the system balances safety, fairness, and the rights of defendants and victims and uses objectivity to help judges make decisions about who gets released and whether conditions to release are imposed.

"If a prosecutor requests pretrial detention for a person who has been assessed as high risk or arrested for a serious or violent crime, the court will hold a hearing where both the defendant and the victim have an opportunity to testify," said the Judicial Council in an email to ABC10 from Public Affairs.

"Following the hearing, if the judge determines that there is no way to safely release a defendant using conditions such as GPS monitoring or drug testing, the defendant will be detained until trial."

2. Why is money for the bill not going toward staffing the judicial system so there can be more speedy trials?

The Judicial Council told ABC10 that the law provides resources for the added workload that SB10 will be imposing on the court system. This includes training for judges and funding for local agencies to provide pretrial assessment services and pretrial supervision services.

3. When will people know how the bill worked out? What are the metrics for success?

"Starting January 1, 2021, and every two years after that, the Judicial Council is required to submit a report to the Governor and the Legislature that documents program implementation and that provides data on program outputs and outcomes," the Judicial Council told ABC10.

Data gathered will include aggregate numbers of arrested persons who are assessed with a risk assessment tool and risk levels of the individuals, number of individuals released, number of individuals considered for release or detention at each stage of the process, and the number of individuals released who failed to appear or were charged with a new crime while pending trial.

"In addition, the Board of State and Community Corrections is required to contract for an independent evaluation of SB10, particularly focusing on the impact by race, ethnicity, gender, and income level."

4. What happens to dangerous criminals that can flee? What precautions would be taken to prevent dangerous criminals from fleeing or being a danger to the safety of the public?

"Currently, people who can afford to pay bail are released from custody no matter how high their level of risk to public safety (which is unknown because there is no assessment), and usually without any form of supervision imposed," said the Judicial Council. "And current law allows bail agents to retain the bond premium that has been paid, even if the defendant commits a new crime."

The Judicial Council says that the new system implements objective factors that can inform judges about whether defendants pose a risk to public safety or are a flight risk. There can also be release conditions and supervision from pretrial supervision services, which can include GPS monitoring, drug testing, and house detention.

"Following a hearing, the court has the authority to detain defendants in custody where there is clear and convincing evidence that there is no safe way to release those defendants before trial," the Judicial Council said.

3 levels of risk in the new system

The risk assessment system has three levels of risk. There are different procedures for individuals in the system.

Low-risk individuals

People with a low risk to public safety and have a low risk of failure to appear can be released before their arraignment with review by the court.

Those taken into custody for misdemeanors can be released within 12 hours prior to arraignment, without a risk assessment. Generally, people arrested for misdemeanors can be booked and then released, but there are exceptions.

Those exceptions are:

  • Domestic violence
  • Stalking
  • Violation of protective order

Medium-risk individuals

Medium risk individuals can be eligible for pre-arraignment release; a superior court and stakeholders will adopt a local rule that sets the review and release standards for this level.

Specified offenders would not be eligible for pre-arraignment release. Local rules would be able to expand upon the following list of offenses that not allow for release pre-arraignment.

Those offense include:

  • Sex offense
  • Domestic violence
  • Stalking
  • Violating a restraining order
  • Violent crime
  • A 3rd DUI
  • A DUI with a .20 blood alcohol level
  • Three or more failures to appear in court in the last year
  • Those on post-conviction supervision
  • A person who threatened a witness
  • Previously violating a condition in a pretrial release
  • Conviction of a violent felony in the last five years

High-risk individuals

High-risk defendants can be released at arraignment, if conditions are found safe. However, the bill also has preventative detention procedures for high risk individuals in order to assure public safety.

Both medium risk and high-risk defendants can be brought to a judge at arraignment to consider whether there are conditions for a safe release. However, prosecution can also file a motion seeking preventative detention at the arraignment or any other time during the criminal proceedings.

Prosecution can file a motion on these circumstances:

  • The crime was committed with violence against a person, threatened violence, was a crime where the defendant was armed, used a deadly weapon, or inflicted great bodily injury
  • Defendant was on post-conviction supervision, other than informal probation or court supervision
  • Defendant was subject to a pending trail or sentencing for a felony
  • Defendant intimidated or threatened a witness or victim of the current crime
  • There is reason to believe no non-monetary condition or other conditions of pretrial supervision can assure public protection or the defendant's appearance in court

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