Inmate until proven guilty

If a statewide push to end California’s cash bail system survives a referendum plot, Sacramento County probation and court officials plan on being ready.

Planning efforts are already underway to prepare for the implementation of Senate Bill 10, which would replace the state’s money bail system with assessments meant to determine which defendants can be released from jail prior to trial and which ones are considered too risky to let go.

Gov. Jerry Brown signed SB 10 in August, after a protracted campaign that split criminal justice reformers over the details of the legislation. Now that it’s law, though, SB 10 is under siege from other groups, namely a bail bond industry that doesn’t want to see its profession obliterated because lawmakers no longer think freedom should favor only those who can afford it.

More than two-thirds of jail inmates in the state are behind bars because they can’t afford bail or are considered public safety or flight risks, Chief Probation Officer Lee Seale told the Sacramento County Board of Supervisors on November 6.

“Meaning they are people who have been arrested for a crime but have not been convicted of a crime,” Seale added.

Data collected by the Board of State and Community Corrections and analyzed by SN&R shows that Sacramento County’s aging jails are glutted with people who are presumed innocent. Through the first six months of this year, 58 percent of the approximately 1,800 people in county lockup on a daily basis had yet to be sentenced. That percentage has remained static for more than two years.

County officials have been warned about the impacts of a majority pretrial detainee population before. According to a county-ordered review of the local jail system, released in November 2016, pretrial defendants have spilled into a second jail intended for convicted inmates.

“The number of pretrial offenders in the jail system exceeds the capacity of the Main Jail, resulting in the placement of a large pretrial population at the Rio Cosumnes Correctional Center (RCCC),” the Sacramento County Adult Correctional System Review stated. “RCCC originally was the County’s primary facility to house sentenced inmates. As a result of crowding at the Main Jail, approximately 1/3 of the current population is now made up of pretrial offenders.”

One of the reasons for the high pretrial jail population, the report found, is inflated bail amounts based on the offenses someone was arrested for, not the offenses they are ultimately charged with. That’s translated into innocent people spending more than a month behind bars:

People who are released without charges still spent an average of 32.5 days in jail, the review found. Those who had their cases dismissed in court averaged more than 39 days in custody.

While judges are responsible for setting bail amounts, they rely heavily on the recommendations of district attorneys, who opposed bail reform through their statewide association. If SB 10 survives the threatened referendum, DA’s offices around the state will still influence how it’s implemented in their counties.

Under the new law, most people arrested for misdemeanors will be automatically released form jail within 12 hours unless they’re accused of one of 10 serious misdemeanors that would force an assessment.

Anyone arrested for a felony or serious misdemeanor will be assessed within 24 hours of being booked into jail to determine if they’re a low-, medium- or high-risk of committing a crime or fleeing while released. Past convictions, missed court dates and other factors would be considered, Seale explained, and those who are released could be subjected to electronic monitoring, drug tests, workplace visits, court date reminders and other safeguards.

What isn’t supposed to be part of the standardized assessment process is bias, implicit or otherwise. The Judicial Council of California is currently devising the assessment tool, and Seale indicated local jurisdictions will provide feedback, as well as be able to shape the tool’s local use based on data, like if Sacramento County defendants are more likely to show up for court than their counterparts elsewhere.

It’s in the broad category of medium-risk where elected DAs will have most sway. Seale explained that the legislation gave local DAs the power to file preventative detention motions to the court regarding medium-risk defendants, in effect opposing their release despite what the assessment concludes. Depending on how hardline a DA is, bail reform could prove even more restrictive than the current system, groups such as the American Civil Liberties Union have warned.

Sacramento Superior Court Judge Lloyd Connelly, the court’s executive officer, doesn’t think that will happen.

“I believe there will be significantly fewer” people in jail custody, he told supervisors last week.

Signature-gatherers announced on November 20 that they had gathered enough John and Jane Hancocks to qualify their referendum for the 2020 ballot, which would freeze the law until voters have their say. That doesn’t mean bail reform will be put off another two years, however. Several California courts, including the state’s highest, are reviewing cases challenging the existence of money bail, Seale noted.

“It is one of several possibilities that the California Supreme Court through a court decision could effectively mandate some kind of limitation on the use of money bail in California,” Seale told supervisors.

In the meantime, there’s prep work to do at the local level. The county is due $200,000 in one-time state monies to start setting up a local program to conduct pretrial assessments and supervision of defendants, with a matching amount of start-up money coming from the general fund.

Bail reform can’t come quickly enough for Sacramento. Right now, Judge Connelly explained, he and his fellow judges are hamstrung into making decisions about defendants’ liberty that “are inherently conservative.” The veteran magistrate shared that his decisions to take away a young person’s freedom have haunted him even more than the life sentences he’s handed down.

“No one likes to lock up people that [we] don’t need to lock up. We’re doing that now. Just because we don’t know,” Connelly said. “And like you, we’re unsure of the path. … But it is coming. And it’s coming because it’s needed.”