In September of 2018, California Governor Jerry Brown signed a bill abolishing the state’s cash bail system. The bill was intended to completely eliminate cash bail for defendants, replacing it with a system of evaluation and recommendation for release or incarceration prior to trial. Ultimately, judges would decide which defendants posed a “threat to the community” and who did not. Proponents of the measure insist that it will eliminate unfair biases in the system that they say treat rich and poor defendants differently.
After the bill was signed, however, citizens the State of California demanded that the measure be placed on the ballot, for a vote by the people. Many people worry that without bail as a means of securing pretrial release, more people will remain behind bars, awaiting trial and that those who are allowed to walk free will have less of an incentive to appear for hearings and trial, creating a greater risk to the community. For the time being, the new bill has been tabled, with plans for it to appear on the 2020 ballot, for a Statewide vote.
How Does Cash Bail Work?
Currently, the bail schedule is set by judges in the Superior Court located within each county. Each county’s bail schedule is available online and in jails, making it possible for an individual who is arrested to know their bail amount and “bail out of jail” before they’re ever actually in jail. If a person can’t afford the entire amount of bail, which is common, they enlist the help of a bail bond agent, who can write a “bail bond” and file that with the court so that a defendant can be released. This allows arrested individuals to return home, often within hours of arrest, making it possible to keep their jobs and maintain normalcy as they await court proceedings in their case.
If a person who is arrested cannot afford bail and cannot afford or does not want to use the services of a bail bondsman, they also have the option of remaining in jail until a bail hearing can be held, this could take a few days. During a bail hearing, the judge will consider the charges that are being brought against a defendant and weigh it against the risk they feel the defendant poses to the community. Then the judge can set the amount of bail he or she feels is appropriate to the situation.
Judges Can Release Defendants, Without Requiring Bail, Now
It is important to note that a judge is currently able to release any defendant, without bail, if they feel the defendant is likely to appear for their court proceeding and is not a danger to the community. No reform is needed to make this the case, it is already the law in California.
The attempt to eliminate cash bail as an option for defendants will mean that everyone accused of a felony will remain in jail until a “risk assessment” has been completed and a release hearing (rather than a bail hearing) can be held. This will result in larger numbers of arrestees being held for 24 to 36 hours in county jails until the risk assessment can be completed. The time held could be even longer, if a hearing is delayed due to court holidays and weekends.
While a day to a day-and-a-half may not seem like much time conduct such an important assessment of the risk that a defendant might pose, it is a great deal of time to someone for whom missing a day of work means not being able to provide for their family.
SB 10 Is Bad For Families
The new laws regarding pretrial release could be especially bad for those accused of domestic violence, and their families.
Section 1320.13 (i) of the new bill states: (i) There shall be a presumption that no condition or combination of conditions of pretrial supervision will reasonably assure the safety of any other person and the community pending arraignment if it is shown that any of the following apply:
(1) The crime for which the person was arrested was committed with violence against a person, threatened violence or the likelihood of serious bodily injury, or one in which the person committing the offense was personally armed with or personally used a deadly weapon or firearm in the commission of the crime, or personally inflicted great bodily injury in the commission of the crime.
This would include all persons accused of domestic violence.
Domestic Violence Is Never Excusable
Everyone can agree that violence within relationships is a terrible thing and should be dealt with in a meaningful way. In California, a conviction for domestic violence can result in up to a year in county jail, three years of probation, a requirement to complete a 53-week batterer’s program, and mandatory fines of $400 used to fund domestic violence programs, as well other fines and court costs. Those who are found guilty of domestic violence pay a heavy price, and rightfully so.
Guilty Until Proven Innocent?
However, it is also a fact that not everyone accused of domestic violence is found guilty. As many as 70% of people who once stood accused of domestic violence are either not charged or found not guilty of and never serve any time in jail. They go on to repair their relationships or move on with their life, as they see fit.
However, if SB 10 is enacted, those accused of domestic violence will not have the opportunity to get out of jail and maintain their jobs to support their families while the charges against them are evaluated and processed. Rather, they’ll remain behind bars until a trial can be held. In that time, they will lose their jobs and their families will suffer. Relationships will be harder to rebuild after incarceration that lasted weeks, if not months, especially with the added financial stress that job loss and income loss will inevitably bring.
SB 10 Requires Jail Time Just For Being Accused Of Domestic Violence
Under the new provision, men and women accused of domestic violence would be ineligible for any type of pretrial release, even if they only stand accused of “threatened” physical harm. These citizens would be forced to remain behind bars, unable to work or support their families, while they await trial. How many families will be additionally harmed by the incarceration of their breadwinner after a particularly heated argument draws the attention of police officers?
SB 10 Puts Police Officers In Difficult Situations
The new provisions run the additional risk of putting police officers in the position to have to play judge and jury in many scenarios.
For instance: Imagine a police officer is called to the scene of an altercation between spouses or domestic partners. Tempers are high and both parties are accusing the other of having harmed them in some way. The police officers know that if they arrest one or both parties, charging them with domestic violence or threats of violence, those people will remain behind bars until a trial can be held and lose their jobs in the process. This knowledge could force the police officer to try to make an on the spot assessment as to the likelihood that this is just a garden variety argument that will play out on its own, or if someone really needs to be incarcerated until a trial can take place.
Making these types of snap judgments is an unfair additional duty that police officers should not have to bear. Under the current, cash bail system, a police officer can arrest one or the other partner on a domestic violence charge and take them to the jail for booking.
The police officer knows that the defendant has the opportunity to post bail, but the time that passes will give both parties plenty of time to cool off. And, the bail money held by the court will remind the defendant to keep his or her self straight until the hearings and the trial can be dispensed with, as they won’t want to lose that money, which they would if they were to fail to adhere to the terms of their bail agreement.
If SB 10 becomes the law in California, police officers will no longer have the option of temporary separation through an arrest and bail process. In the heat of the moment, law enforcement officers will have to make judgments about the severity of the situation and decide whether an arrest is warranted. Some might argue that this will result in fewer arrests that won’t ever be prosecuted anyway, as the rates of prosecution for domestic violence is fairly low.
However, officers of the law are only human and will inevitably make mistakes. And, some of those mistakes could be deadly. Without a doubt, there will be times when the police are called, but the individual accused of violence appears rational and calm to the officers, leading them to believe that things are not so bad. If the officer makes the wrong call, they could leave a victim at the hands of their abuser, because they are reluctant to make an arrest that will result in incarceration until trial. That is a mistake that won’t be discovered until it is too late.
Rates Of Conviction For Domestic Violence
Under the conditions laid out by SB 10, defendants accused of domestic violence will be held in jail with no means of release until their trial can be held, or the charges dropped altogether. For advocates against domestic violence, this seems like a great thing on the surface. However, according to this article in SAGE Journals, only three-fifths of arrests are actually charged and tried. In many cases, the accuser recants, or “takes back,” the account of abuse. This is not entirely surprising, given the heightened state of emotion that is often present in arguments that result in a domestic violence call. People in relationships often do and say things, in the heat of the moment, that they take back at a later time. Accusing one another of things that didn’t actually happen, commonly falls into that category. In fact, when it comes to arrests for domestic violence, the “victims” are the most likely person to try to get the defendant released on bail.
Once you consider the three-fifths of the cases that are charged and go to trial, only a little more than half of the cases result in a guilty plea or criminal conviction, according to the same SAGE Journals article. This is an end result of only about 30% of people arrested for domestic violence being found guilty of it. If we are a people who believe in innocence until guilt is proven, it is unconscionable that we would require mandatory jail time, from arrest to trial, simply for being accused of a crime.
SB 10 Is A Threat To The LGBTQ Community
While the rate of domestic violence in same-sex couples is often cited as being about the same as between straight couples, some studies suggest that this is not true. According to a review of studies conducted by students at Northwestern University, Feinberg School of Medicine, the authors of the review found that in LGBTQ relationships, the rates of domestic violence may be as high as 75 percent.
Another study by the University of Missouri at St. Louis cited domestic violence rates among lesbian relationships as high as 45% and in an article from the US National Library of Medicine Nation Institutes of Health, researchers cite multiple studies that find “61.1% of bisexual women, 43.8% of lesbian women, 37.3% of bisexual men, and 26.0% of homosexual men experienced IPV (Intimate Partner Violence) during their life…” This is considerably higher than the rate of Intimate Partner Violence reported among the heterosexual population: 23.6% of heterosexual women and 13.9% of heterosexual men.
Why Is Domestic Violence So Prevalent in LGBTQ Relationships?
“Evidence suggests that the minority stress model may explain these high prevalence rates,” said senior author Richard Carroll, Ph.D., associate professor of Psychiatry and Behavioral Sciences. “Domestic violence is exacerbated because same-sex couples are dealing with the additional stress of being a sexual minority. This leads to reluctance to address domestic violence issues.”
A higher rate of domestic violence among the LGBTQ community translates into a higher percentage of LGBTQ defendants being arrested for domestic violence. And, these domestic violence charges will be treated differently, under the SB 10 requirements, which state that there should be no conditions for pretrial release if the person arrested stands accused of violence against another person. This will mean that members of the LGBTQ community who are arrested for domestic violence will not have the opportunity to bail out of jail to await trial. Instead, they will remain behind bars, in crowded county jails, until their trial can be held. This is an especially dangerous situation for sexual minority defendants.
LGBTQ Prison Statistics
The instances of violence against sexual minorities in county jails and prisons are much higher than against straight prisoners, according to a report from the Williams Institute at the UCLA School of Law. In fact, the study shows that violence against sexual minorities in custody is so high, that more than 85 percent of LGBTQ prisoners are held, at least part of the time, in solitary confinement, often for their own safety.
While solitary confinement may be a solution for safety during long-term incarceration, it is not easily achieved in crowded county jails, nor is it a deterrent for all violence against sexual minorities. After an arrest, defendants are taken to a processing center, or smaller jail, to be “processed.” Their fingerprints and photo are taken, information regarding identity is gathered, and then often a transfer to a much larger county jail is arranged for. This process can take anywhere from two to twenty-four hours. During this time, the defendant is often held in large common cells or drunk tanks with other arrestees. Violence against sexual minorities during this holding process is common and often can’t be foreseen or prevented by law enforcement.
This period of holding can be scary enough. However, the transfer to a larger, county facility represents a much greater danger to prisoners of alternative sexual identity. If lawmakers are successful in abolishing the cash bail process, there will be no way for LGBTQ defendants, accused of intimate partner violence, to get out of jail before their trial. Whether they are found guilty or not, these defendants will face weeks in county jail, unable to obtain any sort of release under the conditions set out by the proposed law.
SB 10 Is Bad For Minority Communities
While a process of mandatory incarceration for any violent offense is bad for everyone, it is especially bad news for members of minority communities who are more than twice as likely to be arrested for violent offenses, according to statistics from the State of California Department of Justice. SB 10 was specifically drafted to address the inequalities in the justice system that disproportionately affects members of poor and disadvantaged populations. However, the application of the law will do little, if anything, to address these disadvantages among those arrested for domestic violence.
An arrest for intimate partner violence will mean even greater disadvantages for minority families when the accused is unable to post bail, maintain a job and support their family. The knowledge that calling the police about domestic violence will result in automatic incarceration until trial, may make some victims even less likely to report the abuse. This could result in a lower reporting rate for domestic violence and a higher danger to already disadvantaged victims of abuse.
An excellent article by the Reverend Jesse Lee Peterson explores the racial overtones of SB 10 and the consequences to minority communities. Minority and low-income communities are home to a disproportionate amount of criminal activity. If the accused are allowed to go back to their communities, without the consequences of bail or bond, these same communities will be subject to increased violence and crime.
SB 10 Is Expensive To Implement
Senate Bill 10 would require that each county creates an additional agency, called a “Pretrial Agency.” This agency’s purpose would be to “gather information” about every newly arrested person, conduct a pretrial risk assessment, and prepare individually tailored recommendations to the court about each person’s release options and conditions, as well as to provide pretrial services and supervision to these individuals on pretrial release.
These new agencies would have to be enormous, to provide the kind of background information, oversight, and assistance that would be required to make certain that people who have been arrested adhere to the conditions of their pretrial release and show up for their court hearings and proceedings.
Currently, this oversight is being provided, in large part, through the bail system. Those accused of crimes are permitted to post bail with the judicial system to ensure their compliance with court proceedings. Upon the completion of their court case, this money is refunded to the individual who paid it. For those who cannot afford the entire amount of bail, Bail Bond Agencies post bail in return for a fee called a bail premium. This premium reimburses the bail bond agency for their part in keeping track of the accused and ensuring that he or she complies with the conditions of their bail.
Bail bond agents are well trained and are currently providing an invaluable service to the State of California by helping to ensure that those accused of crimes comply with the conditions of their pretrial release. They provide this service at no cost to the taxpayers, as those accused of crimes are footing the bill for their own oversight.
SB 10 would shift the burden of cost from those accused of crimes to the taxpayer by placing the responsibility for oversight and compliance in the hands of these new agencies that would have to be created in each county. This is an expensive and unnecessary move. The implementation of SB 10 is estimated by some to cost $3.2 billion, and require more than $200 million to run each year after the programs are fully implemented. These are costs that will be born by the California taxpayer.
SB 10 Is Bad For Families And Bad For California
It can not be overstated enough that judges are already empowered to release defendants without requiring bail if the judge feels sure that the defendant doesn’t pose a threat to the community and is likely to complete the requirements of a pretrial release. There is no obligation for any person to post bail or engage the services of a bail bondsman, as the law stands now. Judges have the authority to evaluate individual situations and impose any pretrial conditions they deem appropriate. Enacting SB 10 will only place undue hardship on families, defendants, and the community at large.
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