In a recent slate of bill signings by the governor, Californians will no longer have a system of cash bail as collateral to get out of jail while awaiting trial. The passage of the bill is probably one of the top three criminal justice topics of the year. California is the first state to abolish cash bail, after the Court of Appeals ruled the current practice around the setting of bail is unconstitutional.
Money bail will be replaced, beginning in October 2019, by an automated risk grading system relying on data-driven algorithms – essentially a scoring system that decides who is at higher risk levels for being a danger to the public. Orange County judges and prosecutors will be required to use some kind of assessment tool to decide whether a person accused of a crime (other than most misdemeanors) will be set free prior to trial or remain in jail. Counties may decide on what system they will use. Most will likely opt for using a private company’s software given the relatively short timeframe for implementation, but developing their own system is allowed.
The new risk assessment system gives courts sweeping authority to decide who stays in jail.
Proponents of the law, SB10, say that the old cash bail system created inequality, leaving those without financial resources incarcerated, but those with money able to post bail and avoid jail time. This new system, proponents say, will help keep more poor people, who may have been held in jail because they lacked the funds to pay bail or fees, out of jail. Rather a system that is based on the risk an individual poses to the public is a safer, better and a more equitable system.
Opponents say that the algorithms that will likely rule this new risk assessment and preventative detention system are owned by the private companies and contain racial and geographic biases, much like those that are inherent in predictive policing systems. The “formulas” generated by the artificial intelligence that calculate scores are almost always held as intellectual capital by the company who develops the software, so are secret and unknown to anyone but the company.
Opponents argue much of the data the software rely on to create scores, predictions, or patterns come from agencies within the criminal justice system, such as law enforcement, police officers, and probation officers. Because this source data is generated by people and systems not skilled in data science it is potentially “flawed” for purposes of accurate risk predictions, and that the data reflects biases toward the poor and people of color that is inherent in the overall justice system.
Civil liberties organizations and criminal justice activists, which generally support the elimination of cash bail, have actively come out against this legislation because they fear it lacks protections against bias; and gives judges and prosecutors a powerful tool to keep people incarcerated and will use the system to pressure people for quick guilty pleas.
State Senator Robert Hertzberg, one of the co-authors of SB10, has reportedly agreed that there is still work to be done by the legislature to ensure transparency in the use of risk assessment tools and technology.
According to reports it was the Judicial Council, the rule-making body of the California court system, that played a critical role in the passage of the bill. They released a report last October advocating for a “risk-based pretrial assessment and supervision system.” This report lent “credibility” to then proposed legislation that it wasn’t ”just some interest group-driven deal” according to Senator Hertzberg.
There is a major effort in play now to place an initiative on the ballot to repeal the law.
We’ll be watching what system Orange County adopts next year, how the system gets implemented, what the outcomes show, and the efforts to overturn the law.
Jeremy N. Goldman is a distinguished criminal defense attorney and trial lawyer. He has an over 20-year track record of successfully defending criminal cases, often getting charges dismissed or winning acquittals after jury trial. Contact the Law Offices of Jeremy N. Goldman for a no-cost consultation and to learn what legal options are available to you. Call 949-387-6670 or contact us online here.