The Problem with SB10 and Preventive Detention

As we have written about several times, the recent passage of Senate Bill 10, has thrown the California Criminal Justice System in a frenzy.  The bill requires the creation of pretrial services programs throughout the state, requiring additional staffing, monitoring and training of court officials.  If the referendum (an effort by SB10 opponents to get enough signatures to take the initiative to the voters) fails, then the bail would take effect in October 2019.  In addition to the creation of pretrial services, the bill would effectively eliminate cash bail and the commercial bail bonds industry in California.  Without allowing everyone a seat at the table to understand the effect of eliminating a system deeply ingrained in our criminal justice system, the legislature and Governor Jerry Brown passed the bill.  Now, many are left wondering if the bill will have the opposite effect intended.

Originally, SB10 was supposed to decrease the number of people detained pretrial.  It was an effort to help those that could not afford bail and charged with non-violent offenses be released without a financial burden or monetary condition for their release.  Some last minute changes to the bill which caused original supporters such as the ACLU to change their position, drastically changed the effect that the bill would have on those arrested for a crime.  The bill sets up a system of low, medium and high-risk offenders.  These categories are determined by risk assessment algorithms and what determines them is murky at best.  Many fear that these algorithms use tainted data.  Data that is based on prejudices inherent in our criminal justice system and that is biased against minorities.

The other, perhaps more egregious effect of the new SB10, is the potential for an increase in those detained pretrial without the eligibility for release.  The new bill gives nearly unfettered discretion in preventive detention and leaves the parameters for low, medium and high-risk defendants undefined.  The risk assessment tools used to determine the grouping for release take things into consideration like whether you own a home, have employment or own a cell phone.  These factors are naturally inclined to discriminate against the poor, what the original bill hoped to correct.

It is unclear how California will move forward.  Part of it is a wait and see process as opponents to SB10 continue to gather signatures for a referendum on the matter.  Other states that have implemented similar changes have had to make amendments to their state constitutions since the bills were in direct conflict.

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