In a thoughtful move designed to provide fair treatment to low income defendants, the state of California has passed Senate Bill 10. This law pertains to bail system that is currently cash based.

The cash bail system involves the accused paying a sum of money to the court as assurance that they will appear in court for the trial. Paying bail releases the accused from incarceration till the time of trial or arraignment. This system is a significant disadvantage to the those from the lower income brackets. It is shocking to learn that two thirds of the inmates in prison are those who are awaiting trial and cannot afford bail. Apart from being unfair to the defender, it is a drain on the State’s resources to house inmates that do not have to be there.

And so, Senate Bill 10 was formulated and passed in California with the intent to do away with lengthy incarceration periods for relatively smaller crimes.

The law right now:

The law requires judges or magistrates to consider the following factors to fix the bail amount.

  • Protection of the public.
  • Seriousness of the defense.
  • The defendants’ Previous criminal record.
  • Protection of the victim and family members.
  • Probability that the defendant will appear at hearing or trial.

Many defendants are unable to pay the bail amount that is set, leading to them spending a long period of time behind bars that is disproportionate to the crime committed.

All that changes with Senate Bill 10.

The new law from 1st October 2019:

SB-10 replaces the “Cash Bail California” with something known as the Pretrial Risk Assessment. It states that no monetary conditions be placed on the defendant whatsoever. The defendant may be released or detained according to the risk factor that is to be determined by a local Pretrial Assessment Services Agency.

Under the law, each county in the state is required to establish a Pretrial Assessment Agency that will review a defendant and assess the risk to public safety and likelihood of attending court summons.

Apart from the assessment, the agency must recommend non monetary terms of release and supervise the defendant.

It is necessary to determine the level of risk in order to set fair conditions for the defendant’s release. There are three risk levels that defendant are sorted into.

  • A low risk individual is allowed to go with minimal restrictions, none of them monetary.
  • A medium risk individual may or may not be released according to the nature of the crime and the surrounding circumstances. If released, the defendant is supervised by local county courts.
  • A defendant is pronounced High-Risk if:
  1. The defendant has a serious criminal history, or has been accused of specific crimes.
  2. The defendant has committed specific sex crimes or violent felonies.
  3. Defendant has been arrested for driving under the influence (DUI) for the third time in less than 10 years
  4. The defendant is already under court supervision.
  5. The defendant has violated any conditions of pretrial release in the previous 5 years.

Prosecutors and crime victims will have a say in recommending conditions if the defendant is to be released. It is important to note that Pretrial Risk Assessment Agencies cannot make monetary, or bail amount, recommendations. If the defendant is to be detained, clear reasons must be stated by the judge.

Misdemeanors are an exception to this law. They need not undergo Pretrial Risk Assessment but are to be booked and released within 12 hours unless a there is a threat to public safety.

Also important to note, is the fact that a provision in the law allows the judge to call for preventive detention placing considerable power in the judge’s hands.

SB-10 has definitely given us a lot to ponder about. Bail reform has been a long time in coming and though the law has its flaws, it is a step in the right direction.