This upends the very American ideal of innocent until proved guilty. A person accused of a crime who can’t make bail may well lose his or her job and means of supporting a family, along with future job prospects, no matter how the trial ends.
“It’s unsafe, it’s unfair and it’s unjust,” said Assemblyman Rob Bonta, D-Alameda, one of the legislative proponents of Senate Bill 10 to replace money bail with a system that would determine a suspect’s release on an assessment of risk of flight and threat to the community. Sen. Bob Hertzberg, D-Los Angeles, has called the legislation “ground zero in the fight over criminal justice reform.”
The bill cleared the Democratic-controlled Legislature by large margins and was signed into law by Gov. Jerry Brown on Aug. 28, 2018.
But the powerful bail-bonds industry, faced with an existential threat, was not about to go away easily. It bankrolled a petition drive to put the measure on the ballot, which received enough signatures to qualify for the Nov. 3 election as Proposition 25.
The opposition campaign has tried to make the argument that a risk assessment inherently would be infected with racial bias.
Mike Gatto, a former assemblyman and attorney who has studied constitutional law, said he seriously objected to replacing money bail with an algorithm.
“For some of us, that’s just a brave new world,” Gatto said, suggesting that most judges would simply follow the risk assessment presented to them. He has opposed Prop. 25.
Judges would not be bound to accept the risk assessment, however, just as they now retain the discretion to accept or reject a prosecution recommendation for money bail. Attorneys for defendants would have every right to challenge a risk assessment that found them at moderate or high risk. Most important, SB10 did not dictate how those assessment tools would be constructed other than they would need to be “demonstrated by scientific research to be accurate and reliable.”
This is a significant improvement from the current system where money decides who stays in jail and who gets released before trial. As of June 30, of the 61,000 people in California’s county jails, only 17,000 were actually sentenced to confinement, according to the Board of State and Community Corrections. The injustice and racial disparities of the status quo are not hypothetical.
Vote yes on Prop. 25.
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