We need to improve the way bail is administered in our state. However, any change to our bail system must prioritize public safety and make sure that people return for their court dates. Senate Bill 10 and Assembly Bill 42 fail on both counts. They would effectively eliminate, or severely limit, pretrial detention for everyone, including potentially releasing those being charged with murder, rape and child molestation. The bill, written by the American Civil Liberties Union, gives little comfort to crime victims, witnesses and law enforcement.
Our system is not perfect, it needs improvement, but, on the vast majority of cases, defendants are given the resources and protections to guarantee a fair trial. Currently, defendants charged with crimes have several safety valves.
First, our judges set bail according to the crime and the defendants’ criminal record.
Second, we provide exceptional staffing to our public defender offices, including a legion of investigators.
Third, our sheriff will not keep individuals in custody unless their bail is more than $25,000.
Fourth, for lower level crime, defendants are automatically released without posting bail.
Fifth, defendants, once bail is set, can request a bailing hearing where they can provide reasons why bail should be reduced.
The authors of SB 10, introduced by Democratic state Sen. Bob Hertzberg of Van Nuys, and AB 42, introduced by Democratic Assemblyman Rob Bonta of Oakland want to blow-up the existing system. Rather than relying upon defense attorneys making their arguments as to why bail should be lowered on a case-by-case basis, they create a new agency at the cost of anywhere between $2.5 billion to $3.5 billion. These new agencies are expected to generate reports within 48 hours of arrest (with the exception of violent felons, which will have a longer period) to determine whether a defendant is a flight or public safety risk. This timetable is unrealistic considering that it already takes probation two weeks to generate a report on a known violation. Now, we are expecting this new agency to compose a risk assessment report within the first 48 hours of arrest?
However, more troubling is how this new agency is supposed to decide who needs to post bail. They are prohibited to “give undue weight to factors such as criminal history.” Furthermore, “it shall distinguish between failure to appear and willful failure to appear.” This eliminates the two most important tools at our disposal for determining who should remain in custody.
What replaces the current considerations of public safety and likelihood to appear? Excellent question. The guidelines only give concrete limitations. Entirely missing from the proposed guidelines is a mandate that the agency “shall prioritize public safety” or “ensure the defendant’s likelihood to appear.”
Nor does the proposed system do away with bail, because even after $3.5 billion of reports a person can still post bail. How does this address the inequity of the wealthy person posting bail and escaping the consequences of being convicted? How does this address public safety if the reports indicate he is a danger to the community?
However, what is of great concern is that under the current system a capital murder charge is sufficient to detain the defendant without bail. Under SB 10 and AB 42, we will now need to conduct the equivalent of a civil trial in front of a judge.
The bills require judges to presume the defendant innocent, a right that currently exists during trial, and presume that the defendant should be released. This would require prosecutors to put on mini-trials before the preliminary hearing and, absurdly, it would require a higher standard of proof than the preliminary hearing.
In one of my recent gang murder cases, the defendant committed murder while he was released pending a residential burglary charge. The judge responsible for his burglary case released him without requiring him to post the scheduled bail of $50,000. This was within her discretion. Shortly after his pretrial release, he murdered a rival gang member. If the bills pass, this type of scenario would likely occur more often.
Sacramento politicians want to blow up the entire system because they have heard of extremely rare cases of individuals locked up for minor offenses and losing their jobs. No question we need to stop this from happening. It is clearly unfair. But it is equally absurd to strip away victims’ rights, diminish the power of judges to hold a person in custody and presume the release of defendants to overcorrect for the inequities on the other end of the spectrum.
Eric Siddall is vice president of the Los Angeles County Association of Deputy District Attorneys. He is also a deputy district attorney in the Hardcore Gang Division. He graduated from Fordham University School of Law in 2000.