California’s cash bail reform has a couple big problems

One in eight Americans will be freed from the scourge of criminalized poverty starting next year, after Gov. Jerry Brown (D) signed a law to end the cash bail system in California this week.

The new law, which is set to take effect in October 2019, will make California the first state to abandon a money-driven system for determining which defendants languish in a cell before trial and which get to sleep in their own beds.

The people who stand to lose from the landmark shift – the state’s 3,000 or so licensed bail agents who pull in more than $300 million a year in fee revenue – are already working to stall the change, or even cancel it. The bailbondsmen launched a ballot initiative drive the day after Brown signed the bill, intending to gather almost 400,000 petition signatures in the next three months to put the question on the 2020 ballot. The new law would be frozen until voters weighed in if the initiative push is successful.

It’s predictable that the people who make money from the status quo would object after the signing, just as they did throughout the more than two years of slow, iterative coalition work that went into Tuesday’s bill signing. But the closing weeks of the legislative push produced brand new opposition from an unlikely source. Critics of mass incarceration ended up opposing the bill after a sweeping rewrite of the bail reform package earlier this month.

Human Rights Watch, the ACLU’s state chapters, and progressive policy and litigation outfits like Silicon Valley Debug and Civil Rights Corp turned against the bill because they say the mid-August overhaul leaves the measure unlikely to actually reduce the number of people held in pre-trial detention. The groups still applaud the end of cash-based determinations, but argue the amended version abandons their key principles for change and punts crucial implementation questions to the law enforcement community instead of a new specialized staff of social workers.

“The two main goals we had with SB10 besides eliminating for-profit bail in California were to have a surefire way of reducing the number of people trapped in jail who were accused of but not convicted of a crime, and to make sure we’re fighting racial injustice in the system. It was clear this bill wouldn’t do those two things,” the ACLU of Southern California’s Jessica Farris said.

The final bill dropped a requirement for courts to report data disaggregated by race, so that researchers could audit whether or not the reforms were delivering progress on black-white disparities in pre-trial outcomes, Farris said. It also scrapped an earlier plan to create new, standalone agencies that would interview individual arrestees to furnish recommendations to judges.

“I never thought I’d be watching votes come in and hearing legislators quote the ACLU and the bail bonds agents on the same side.”

Cash bail has been the courts’ only tool for pre-trial decision-making for decades. Since people not yet convicted are legally entitled to a presumption of innocence, but some small percentage of people arrested end up either skipping their court dates or committing new crimes while awaiting trial, society’s interests in security and individual liberty are acutely at odds in the pre-trial phase of a criminal case.

For minor crimes, the fix is easy – give people a citation and a court date and send them home again. But for more serious misdemeanors and just about all felonies, the courts are hesitant to put somebody “in the wind” until schedules align for their case to be adjudicated. A person kept in jail for weeks or months before trial loses their livelihood and, in cases where they’re ultimately found innocent, come out more likely to engage in criminal activity in the future thanks to their exposure to institutionalization.

The severe harms of pretrial detention for innocents mean that it should be law enforcement’s burden to prove that someone can’t safely be sent home, the civil rights wing of the coalition argues. The amendments in August flipped that policy structure around: The new bill assumes that people accused of certain serious crimes or with certain prior convictions at the time of arrest should be held for trial, putting the burden of proof on the presumed-innocent arrestee.

“It went from a rebuttable presumption of release to a rebuttable presumption of detention, and from our perspective that’s just wrong,” said Farris. “Liberty should be the norm before you’ve actually been convicted of a crime.”

Other, narrower frustrations nestle inside that big-picture objection. The original bill envisioned entirely new dedicated agencies in each county to interview and assess individuals and generate recommendations for detention or release. The amended law houses that work in existing agencies – putting probation officers in charge of decision that the civil liberties crowd would prefer handled by social workers.

Supporters of the compromise package stressed that California probation agencies have already been conducting these kinds of interviews in many parts of the state for years. The changes not only save money by sidestepping the complexity of standing up new agencies, Shelley Curran of the state’s Judicial Council said, but also place that work in experienced, diligent hands.

“Probation in California has taken extraordinary leaps over the last 10 years in implementing risk and needs assessments,” Curran said, pointing to a 2009 law mandating the agencies conduct similar individualized risk assessments for those in their charge. “I think they’re best positioned in the state to be the ones conducting the risk assessments. It’s the culture of probation offices in California right now to conduct risk assessments for individuals who are going to be out in the community.”

Curran’s organization will have immense influence over exactly how the new system will work. The law instructs the Judicial Council to write various new Rules of Court to govern how counties evaluate the risk of someone failing to appear for a court date or committing new crimes while on release, and how judges are required to incorporate those evaluations into their decision-making.

Judges have balked in the past at being told that a person before them has been scored for risk by an interviewer or a computer. Curran thinks California judges are excited to try out the new system. The amended version largely reflects concerns the Judicial Council lodged in July 2017, and the group enthusiastically embraced the amendments that caused the ACLU and others to abandon the bill.

“It’s a tool that helps inform pretrial decisions, before arraignment, and then provide more info to judicial officers when they’re making these decisions,” she said. “We’re not suggesting that big scary algorithms in a magical room behind a curtain are going to be making decisions about how people are treated in California.”

Even where all stakeholders agree reform is needed or that too many people are kept locked up unnecessarily or unjustly by cash bail, though, results can vary widely depending on which version of a risk-assessment analysis courts use.

The newest such tool, called the Public Safety Assessment (PSA), comes from policy experts at the quantitatively-oriented Laura and John Arnold Foundation. Their formula breaks from predecessors in two primary ways. It abandons any individualized in-person interviews such as those a social worker might conduct to get a feel for a person’s circumstances, and it drops all data indicators that touch on socioeconomic status.

The former change worries progressive groups and has reportedly agitated judges in Santa Clara County, where the PSA has been in use for a few years. The latter is inarguably positive: Formulas that incorporate figures on income, zip code, and the demographics are inevitably going to replicate the racial biases and inequities of society at large, and produce worse results for black and brown people than for white people in the aggregate.

The Arnolds’ role in pretrial detention reform around the country is a complicated piece of California’s decision to abandon cash bail entirely. The billionaire couple are sometimes portrayed as the next Koch Brothers, in large part because the foundation campaigns to destroy public-worker pensions, with some dubious ideological assumptions underlying their math. But as their criminal justice reform work suggests, the group views itself as transideological. Neither left nor right in political identity, the Arnolds are zealots of an algorithmic church.

The no-talk all-math purism of PSA’s formula was kept hidden for years. The group’s partners had to sign nondisclosure contracts to use it. Several months after the California judges raised concerns about the formula’s untested status, though, the Arnolds made their secret public. One study from before the Arnolds’ transparency pivot reported that racial disparities in pre-trial detention had actually worsened in Kentucky since it adopted the formula, but only because judges resisted the formula in urban jurisdictions. A second analysis of Kentucky outcomes by researchers the Arnolds sought out concluded that it performs slightly better than one existing, interview-based assessment tool but worse than another. The second study also found the PSA underestimates the likelihood that a white person will be arrested on a new charge if released while overestimating the same danger for black defendants.

California counties will be able to choose other assessment tools from a list that is yet to be determined. The Judicial Council will decide which rubrics are sufficiently valid and bias-free to be used. But it will be years before anyone can say with confidence how well any of this is working. The Judicial Council will track and report data from the get-go, but the state has until 2024 to get an outside analysis of the numbers.

In the meantime, the bail agents will keep gathering signatures to try to stop the new law. And the civil liberties progressives who felt betrayed by the last-minute rewriting of the compromise bill will have to reflect on the unpleasant experience of waking up next to the enemy.

“I never thought I’d be watching votes come in and hearing legislators quote the ACLU and the bail bonds agents on the same side,” Farris said. “Their reason is they don’t want their livelihood destroyed, [while] we wanted to decrease the number of people who are held in jail and increase racial justice. Those are not the goals of the bail bonds industry.”


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Author: Alan Pyke

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