By: Kyle Harrison

When the police arrest someone on suspicion of committing a crime, the person is brought to jail. In an ideal criminal justice system, the person would be given a trial the next day where a judge and jury determine the defendant’s guilt.  This is not the system we currently have. Individuals are arrested and can wait months – and sometimes years – for criminal trials to take place. Our jails do not have the resources to keep all these defendants incarcerated before trial.

Bail is a common law relic, created during the Middle Ages in England with the intent of keeping jail populations low and ensuring a defendant’s return to court. Critics argue the problem with the bail system is that it allows the defendant’s release and return for trial only if that person can afford bail. Under the current system, judges look to bail schedules to decide the amount of bail for defendants. Judges have to make a quick assessment of whether to set bail and how much it should be. Currently the average bail amount in California is $50,000, and at least 10% of the total amount must be posted in order to make bail. Therefore the average amount necessary to make bail is $5,000. According to a 2016 report by the U.S. Federal Reserve, 46% of Americans do not have even $400 to pay for an emergency payment. Thus, even if bail is set at $1000 or $500, let alone $5000, many people simply do not have sufficient funds available to afford the $500 to post bail. Critics of the current bail system argue that the problem with the bail system is that it allows the defendant’s release and return for trial only if that person can afford bail  and that it results in lower income defendants remaining incarcerated while those with greater financial means are able to buy their freedom.

Because many defendants cannot afford bail under the current system, the majority of jail detainees are not serving sentences. Indeed, 66% of California’s jail population is awaiting trial. Close to 50,000 defendants who have not yet been convicted of a crime and are presumed innocent are being detained. This pretrial detention can be more than an inconvenience for the poor, and can lead to them losing their property, their jobs, even their children. Lengthy pretrial detention has also been shown to increase the chances of recidivism when the individuals are released. Many of them pose no public safety threat or flight risk. They simply lack the money to afford bail.

These are the problems that SB 10 aims to fix. Under the current language, SB 10 mandates the creation of pretrial agencies in every county in California. These pretrial agencies will be tasked with gathering information on new arrestees and conducting risk assessments that will be given to the judge with a tailored recommendation for each defendant, advising release or detention. The recommendation’s primary concern will be the safety of the public and the victim(s) and the flight risk of the defendant. The agencies will also be tasked with supervision of the released pretrial defendants and will remind them of court dates. This new proposed system would also assess the safety of the individuals and release those who are deemed safe without regard to a defendant’s financial means. This bill, however, does not eliminate the option of money bail—it allows judges to keep their discretion to apply money bail when deemed necessary. After much debate and many amendments, SB 10 has been turned into a two-year bill, meaning that if passed and signed into law, this will occur in 2018. This means that at least some of the bill’s language will likely change, so it is unclear exactly how the language of the bill will ultimately read.

There is significant debate on whether the goals of the bill can be met without jeopardizing public safety. According to the Senate Committee on Appropriations, SB 10 will likely cost in the hundreds of millions of dollars annually for counties to establish and operate the pretrial agencies including the additional requirements under the bill. The bill’s proponents, however, claim there will be significant future savings from no longer needlessly incarcerating thousands of Californians. Opponents argue the cost of creating, training, and maintaining the pretrial agencies will be high and that SB 10 will eliminate thousands of jobs in the bail industry in California. Now that the authors have turned SB 10 into a two-year bill, giving the legislature until September 2018 to pass it, they have gained the support of Gov. Jerry Brown and Chief Justice Tani Cantil-Sakauye. Such support makes the chances of passing the bill next year very good.

To learn more about SB 10, listen to both parts of two-part interview on “In Session,” a podcast by the University of the Pacific Law Review.

Kyle Harrison is a staff writer for the University of the Pacific Law Review and law student student at McGeorge School of Law in Sacramento.