California bails on bail reform

In May 2017, police arrested 63-year-old Kenneth Humphrey for allegedly stealing $5 and a bottle of cologne from his elderly neighbor. Humphrey had a history of robbery convictions, and the judge set his bail at $600,000—far more than the retiree could pay.

Humphrey, who hadn’t been in trouble with police in 11 years, appealed the bail decision. Eight months later, an appeals court reduced Humphrey’s bail amount to $350,000 and ruled a judge must consider a defendant’s ability to pay when setting bail. It described “a significant disconnect between the stringent legal protections state and federal appellate courts have required … and what actually happens in bail proceedings.”

In May 2018, Humphrey was released to house arrest at a residential recovery center before his trial, which is scheduled to begin next month.

Humphrey’s case became a rallying cry for cash bail reform in California and eventually led to a 2018 state law upending the bail system. But in a statewide referendum on Election Day, 56 percent of California voters rejected the changes. The original law met mixed reactions from bail reform advocates, who splintered over the criteria judges would use to decide which defendants go to jail and which go home.

Former Gov. Jerry Brown signed Senate Bill 10 in 2018, making California the first state to abolish cash bail. The law mandated that judges decide whom to keep in jail until trial based on a risk assessment that predicted the likelihood a defendant would reoffend or skip court. Lawmakers took two years to reach compromises that got the bill through the state legislature. But the day after Brown signed the bill, a coalition of bail bonds agents filed for a statewide referendum.

The bail industry found some surprising allies. The NAACP, Human Rights Watch, the American Civil Liberties Union of Southern California, and other groups argued that though cash bail hurts the poor and minorities, risk assessments are just another form of prejudice. “Using these profiling methods to decide who gets released from jail or who gets a loan has been proven to hurt communities of color,” said Alice Huffman, president of the California NAACP.

SB 10 required state officials to develop a list of approved risk assessments local jurisdictions could use. But the push for the referendum paused the law’s implementation, and those officials never developed the list. Most California counties already used a risk assessment as part of the process. Of the four most commonly used, all measured criminal history, and three included questions of employment.

The liberal-leaning groups that helped restore California’s bail system follow a broader trend of advocating reform but rejecting risk assessments. The Pretrial Justice Institute released a statement in February explaining its changed position: “Regardless of their science, brand, or age, these tools are derived from data reflecting structural racism and institutional inequity that impact our court and law enforcement policies and practices. Use of that data then deepens the inequity.”

Derek Cohen, policy director of the Texas Public Policy Foundation’s Right on Crime campaign, said it matters what factors a risk assessment measures. The Arnold Foundation’s widely used Public Safety Assessment measures nine factors, including age, prior convictions, and previous failures to appear in court. The tool gives different weight to each factor and ranks an individual low-, medium-, or high-risk.

But some jurisdictions rely on socioeconomic data. A tool in Colorado considers whether the defendant has a cellphone and owns a home. An Ohio county evaluates the individual’s personality and family life. In El Paso, Texas, officials creating a risk assessment considered asking whether the person had a father at home. “At best, that’s tangentially related to any of the primary questions of bail,” Cohen said. “But it definitely has no bearing on the actual setting of bail whatsoever.”

He believes the best option would be to provide a simple risk assessment to a judge, who can then rule within the state’s guidelines. The assessment would give the judge relevant information, and the judge could decide if a situation warranted a particular decision.

Heather Rice-Minus, Prison Fellowship’s senior vice president of advocacy and church mobilization, advocates for risk assessments too, as long as they use helpful criteria. “There’s no perfect system,” she said. “But in some cases, I think it’s helpful … to defer to at least a risk assessment that uses objective measures.”

California, meanwhile, is back to the traditional cash bail system.