In the final days of his governorship Jerry Brown of California signed into law a bill that went by the innocuous title of “SB10”. That is, Senate Bill 10. When it first came before the California legislature SB10 was hailed as the answer to everything that ails the American bail system. In one fell swoop unjust incarcerations would be eliminated, poverty would be decriminalized, those fine upstanding B&E guys who work Potrero Hill in San Francisco would have an opportunity to demonstrate their trustworthiness and dogs and cats would live together in peace and harmony.
But a funny thing happened on the way to judicial nirvana: reality. You see the fact is that:
Almost from the minute SB10 arrived on Jerry Brown’s desk it was facing fierce opposition from many of the same groups that had initially championed it. That includes the NAACP and the ACLU among dozens of others. Their change of heart stemmed from two sources. First, the bill had been fundamentally altered to provide judges with enormous discretionary power when it came to detaining suspects and second, data had started rolling in from around the country which showed that risk assessment algorithms - intended to take the place of the bondsman - were deeply and fundamentally flawed.
Those powerful civil rights groups lobbied Brown to kill SB10 though he signed it anyway right before exiting the political stage. But his disregard for legitimate concerns about the bill didn’t faze opponents, who immediately began circulating a petition to postpone enactment of SB10 until it could be put on the ballot for voter approval in 2020. In the meantime the bail bonding industry got a momentary reprieve.
The coalition of groups opposing SB10 had 90 days by law from the date Brown signed the bill to collect 365,880 signatures from registered California voters. If they could do that they could force a referendum vote on SB10. After only 70 days they had more than 575,000 valid signatures and filed their petition, effectively blocking implementation of SB10 until voters have their say at the end of 2020.
It’s more than a little ironic that the bail industry and groups like the ACLU now find themselves allies fighting a common enemy. But stranger things have happened. And the truth is, while they may be joined in opposition, it’s for 2 different reasons. The ACLU wants to get rid of cash bail but doesn’t want judges to be granted tyrannical powers. While the bail industry argues that scrapping cash bail amounts to abandoning a system that has worked (albeit imperfectly) for hundreds of years. They point to the fact that in states that have eliminated bail the rate of no-shows in court is as much as 10 times higher than in states with bail systems.
Still, whether they agree on the final shape of bail in California or not, or whether there will be a bail system at all in California 5 years from now or not, they’re currently working together to send SB10 to the dustbin of history where it belongs. And the current odds favor them succeeding.
The implications of what is transpiring in California will have a ripple effect throughout the nation. When combined with the failure of the risk assessment algorithm system in New Jersey - where thousands of dangerous suspects have been set loose on the street with no way to keep track of them - it’s likely the algorithmic risk assessment system is in for a rough ride.
Including in Colorado, where rudimentary algorithms have been in use in 12 counties for several years. Those algorithms and their effectiveness have never been validated and it’s now uncertain if they ever will be, since politicians are understandably losing their appetite for algorithms. Frankly, no one in Jefferson County, Arapahoe County or Denver County wants a repeat of New Jersey’s fugitive free-for-all, or to create all-powerful judges able to circumvent the constitution the way California has. So what shape the pretrial release system takes in Colorado remains to be seen.
In a fit of pique the ACLU recently issued a statement that distanced itself from the bail industry. In part that statement said “We will never support any effort to keep the predatory bail industry in business and will not tolerate the indefensible harm it creates.” If by “harm” they mean protecting the integrity of the legal system by promoting accountability, or doing the hard work of tracking down fugitives so that average citizens can feel safe on the street, then the bail industry certain is guilty.
But the ACLU hissy fit is really more about protecting its revenue stream than standing on any particular principle. They get most of their money from foundations that are pushing for bail reform and they have to keep those contributions flowing. The bottom line however is that even they are able to recognize that SB10 and other no-bail systems are an idea whose time has come and gone.