Aug. 28, 2018

After sitting for a year, the California Money Bail Reform Act (SB 10) was amended on August 20, quickly passed by the Legislature, and signed by the Governor on Tuesday. SB 10 creates a risk-based system based on the Chief Justice’s Pretrial Detention Workgroup recommendations.  

In signing the California Money Bail Reform Act, the Governor stated, “Today, California reforms its bail system so that rich and poor alike are treated fairly.” The Governor further emphasized that this legislation preserves the rights of the accused, while prioritizing public safety.  

The President of the Chief Probation Officers of California, San Luis Obispo County Probation Chief Jim Salio, echoed this sentiment> “When the historical policy decision was made to remove cash bail from our criminal justice system we knew as experts in the field of risk assessment, public safety and rehabilitation, it was crucial to maintain the balance between public safety and civil rights by utilizing evidence-based risk assessments in the absence of a bail schedule,” he said. “We believe SB 10 will maximize return to court, maximize public safety and enhance opportunities for low-risk offenders to maintain critical community support.”

This legislation enacts a risk based system instead of a money bail system for determining when a person is released from custody.   Specifically, the legislation:

• Requires each Superior Court to have an entity, division or program that provides “pretrial assessment services” to assess the risk level of persons charged with a criminal offense and to make recommendations for conditions of release of those individuals pending adjudication of their case.
• Provides that a person arrested or detained for a misdemeanor, with some exceptions, may be booked and released, or if taken into custody, shall be released within 12 hours without a risk assessment.
• Provides that if a person has been assessed as having a low risk to public safety and a low risk of failure to appear, he or she should be released on his or her own recognizance prior to arraignment without review by the court within 24 hours.
• Provides that specified offenders should not be released pre-arraignment and that the local rule may expand the list of medium risk offenders who may not be released pre-arraignment.
• Provides that high-risk defendants, and medium-risk defendants who are not released prior, shall be brought before a judge at arraignment to consider whether there are conditions that would allow a safe release of the defendant and would reasonably assure public safety and defendant’s return to court.
• Provides that at arraignment, or at any other time during the criminal proceedings, the prosecution may file a motion seeking preventative detention.
• Requires the Judicial Council to adopt California Rules of Court and forms to do a number of things relating to the implementation of this bill, including:
  • Prescribing the proper use of pretrial risk assessment information by the court.
  • Prescribing standards for review, release and detention by Pretrial Assessments Services and the court.
  • Prescribing the parameters of the local rules authorized by this bill.
  • Prescribing the imposition of pretrial release conditions, including designation of risk levels or categories.
• Provides that the Judicial Council shall compile a list of validated pretrial risk assessment tools.
• Provides that in consultation with the Chief Probation Officers of California, the Judicial Council shall assist the court in developing contracts with local public entities regarding the provision of pretrial services.
• Provides that the courts shall establish pretrial assessment services which may be performed by court employees or the court may contract for those services with a qualified local public agency with relevant experience.
• Provides that there shall be funding for the courts to contract with local justice system partners to provide pretrial assessment services.
• Provides funding for local justice system partners to provide pretrial supervision services if they contract with the courts to provide pretrial assessment services.

This legislation has a delayed implementation date of October 1, 2019.  Additionally, there is language in Assembly Bill 1828 (Committee on the Budget) and Senate Bill 862 (Committee on Budget and Fiscal Review), that would require the Judicial Council to allocate up to $15 million, which would be reimbursed during next budget cycle, to “support start-up activities associated with implementation of pre-trial reform, including development of protocols and rules of court, training, administrative activities, and other necessary activities.” This legislation also states that “it is estimated that implementation of the pre-trial reform legislation will have an annual cost of $200,000,000, as reflected in the most recent longer-term state spending plan.”

Finally, given that this legislation moved so quickly through the Legislature, there will likely need to be clean-up both this session and next. There has been one piece of clean-up legislation so far —SB 1054 (Hertzberg), which fixes an incorrect cross reference which references the version of the sex offender registration statute not yet in effect and allows the County of San Francisco to use non-public employees to conduct the risk assessments until 2023.