From a recent article in the Orange County Register: Tony Rackauckas, District Attorney for Orange County eloquently explains why Bail Reform is a bad idea. I’ve written about the negative aspects (not so eloquently) of bail reform, the posts are available here under blog posts.
“There have been two major cases in the news recently, both of which have garnered national media attention. In Orange County, Samuel Woodward was granted $5 million bail after he was charged with murdering 19-year-old Ivy League student Blaze Bernstein.
In Riverside County, the Louise and David Turpin are being held in lieu of $12 million bond each after they were charged with multiple counts of torture and child abuse and are accused of chaining and starving a dozen children.
California Senate Bill 10 would cause this complicated and expensive process: First, the defendants would have a right to request a pretrial risk assessment in which the risk assessment officer would determine what conditions of release should be recommended to the court. A judge must find there are no conditions of release that would reasonably ensure the Turpins’ and Woodwards’ appearances and specifically state why each specific condition recommended is not sufficient, then and only then, can the court set monetary bail.
Instead of the $5 million or $12 million bail noted above, the court would only be allowed to set bail within the defendants’ ability to pay. The prosecution would in theory be able to petition the court to set no bail, but we would be required to meet the very difficult burden of proving at a hearing: 1) the facts are evidence and the presumption is great; 2) there are no conditions that would reasonably assure the physical safety of “another person”; and 3) there is a “substantial likelihood” the defendant’s release would result in “great bodily injury” to another person. Without a specific threat from the defendant to a specific person, it’s difficult to envision how this burden could be met without a crystal ball.
This newspaper’s editorial board recently (“Cash bail doesn’t make California safer, it just crowds our jails,”) painted an inaccurate picture of California’s current bail system in support of SB10. The new law would install a revolving door at the back of our jails, create a presumption that the accused should be let out of custody and pose a substantial risk to public safety by creating new victims.
Under current law, bail serves as a promise to appear and allows for the release of a defendant in exchange for money, which the court holds until the disposition of the case. Bail creates incentives for persons around the defendant and the accused to come to court and stay crime-free. If the defendant does not appear, a bail bondsman will find the defendant and bring the individual to court at his/her expense, not the taxpayer. Bail schedules correlate with the severity of the offense:
• Murder: $1 million bail
• Human trafficking: $250,000 bail
• Forcible rape: $100,000
• General felony: $20,000 bail
The court may adjust the amount up or down in most cases.
In an unprecedented move, SB10 would eliminate fixed-bail schedules for all offenders, including those charged with serious and violent offenses. Misdemeanor offenders (with few exceptions) would automatically be released without having to post bail. SB10 would shift the judge’s primary consideration for determining bail from public safety to the defendant’s “presumption of innocence and the probability of appearing in court.” Monetary bail would be virtually eliminated and in the rare instance when bail is set, the judge would be required to set bail at the “least restrictive level necessary.”
Defendants charged with murder or rape would be allowed to request a pretrial services report, present and cross-examine witnesses (including victims) at a bail hearing and be considered for release. Defendants charged with human trafficking (including victims who are minors) would be entitled to a risk assessment and release pursuant to conditions within six hours. Human traffickers would not even be required to see a judge prior to being released. The expense the defendant is spared would immediately be placed upon the victims, their families and prosecutors, to keep serious and violent offenders in jail pre-trial. This proposed legislation also attacks criminal justice reform of Proposition 115 and Marsy’s Law.
To further the narrative that innocent individuals are “stuck in jail” due to inability to post bail, your editorial cites statistics from 2015, claiming one-third of all felony arrests in California result in charges never being filed, charges being dismissed or acquittal. This figure is deceptive, because it does not account for hundreds of cases that are consolidated, arrests that result in probation violations rather than new charges, or deferred judgments (in which the defendant earns a dismissal over time by participating in a program and remaining crime free). Contrary to the paper’s claim, financial solvency is not the “final determinant” of whether or not he or she remains behind bars. Charges are filed after police investigations, after probable cause has been established and sworn under penalty of perjury by the arresting agency and the case has been reviewed by a prosecutor who bears an ethical burden to only file a case he or she believes can and should be proven beyond a reasonable doubt before a jury.
Finally, SB10 would hurt taxpayers by adding a costly layer of unaccountable bureaucracy by requiring each county to establish a pretrial services agency to conduct a report with recommendations presuming release. Although some counties are presently testing a pretrial release program, in most cases it is being conducted on a provisional basis and is typically limited to certain offenses or categories of defendants, not serious or violent felony offenders.
Risk determination must be managed through a verified risk assessment tool with evaluations conducted by a sitting judge accountable to the public and not relegated to backroom bureaucrats operating outside the presence of those entrusted to uphold justice. In addition, adequate resources must be made available to impose release conditions calculated to protect the public and ensure reappearance such as GPS monitoring, staffing to monitor home and work visits and searches, Secure Continuous Remote Alcohol Monitoring as well as regular drug and alcohol testing. There must also be a meaningful process must also be in place to revoke release upon violation of terms or release or re-offense.
Our first priority must be public safety.”
Tony Rackauckas is the district attorney of Orange County.