SB-10: The Bail Reform Bill That Reform Advocates Didn’t Want

The month of August saw the Governor of the state of California, Jerry Brown, sign the Senate Bill 10 into law.

Going into effect in October 2019, this bill will end the cash bail system in California, a system bail reform advocates have long considered to be unfair to low-income defendants who cannot afford bail and have to be locked up until trial as compared to wealthy defendants who get to go home.

California is the first state to do so, and this bill would replace the cash bail system with a risk-assessment system and expanded power for judges.

And while there have been several calls for bail reform, not just in California but all over the country, the revised version of the California Senate Bill 10 has attracted opposition from detractors and bail reform advocates alike.

Opposition from Bail Reform Advocates

Last year, the American Civil Liberties Union (ACLU) of California announced their intent to work with other organization to co-sponsor SB-10, also known as the California Money Bail Reform Act.

But when the amended bill was signed into law in August, the ACLU pulled its support and changed its stance to oppose it.

“Unfortunately, this amended version of SB 10 is not the model for pretrial justice and racial equity that the ACLU of California envisioned, worked for, and remains determined to achieve,” read a statement released by the organization soon after. “We oppose the bill because it seeks to replace the current deeply-flawed system with an overly broad presumption of preventative detention. This falls short of critical bail reform goals and compromises our fundamental values of due process and racial justice.”

10 advocacy organizations, including the ACLU, Silicon Valley De-Bug and Essie Justice Group worked with Sen. Bob Hertzberg to draft the original version of the bill.

But the Justice Council of California (JCC) jumped in at the last minute to make changes that haven’t gone over well with them.

“Hertzberg had been approached by the Judicial Council of California, who had their own ideas about what they wanted bail reform to look like,” said Gina Clayton-Johnson, director of the Essie Justice Group.

Advocates insist that the amended SB-10 places enormous power and discretion in the hands of judges and a county’s Pretrial Risk Assessment Agency, letting them detain people based on their subjective determination.

So, instead of providing defendants with a presumption favoring release, the bill effectively provides them with a presumption favoring detention and requires them to show why they should be released.

“Under the current law, the burden was on the prosecutor to prove why bail should be denied to you,” said Raj Jayadev, a coordinator with Silicon Valley De-Bug, another co-sponsor of SB-10 that later pulled its support. “If high bail was assigned, at least then you had the slim possibility of paying it if you couldn’t afford it. Under the new law, a judge can simply order you detained with no chance of pretrial release.”

And all advocacy groups are in agreement about one thing: the new bill will only serve to put more people in jail than before.

As it stands, what was looking like a victory for bail reformists in the state of California is increasingly looking like a victory for the JCC, and while the new bill does not provide complete justice for defendants, it is certainly a step in the right direction.

But that step might also come at a huge cost.