Walters: A Strange Bedfellows Alliance on Bail

Senate Bill 10, passed by the Legislature and signed by then-Gov. Jerry Brown in 2018, violated one of the unwritten rules of making public policy in California.
The measure, one of several criminal justice reforms championed by Brown during his second governorship, would eliminate cash bail for those accused of crimes in favor of a new “risk assessment” program.

Criminal justice reformers have clamored for years to eliminate cash bail, saying it discriminates against poor defendants who lack the financial ability to buy their way out of jail while awaiting disposition of their cases. Unable to return to their jobs and families, it’s argued, poor defendants feel compelled to plead guilty rather than await trial.
While SB 10 drew heavy opposition from bail bond agents, who would be put out of business, its final version was also opposed by civil rights and criminal justice reform groups which disliked the risk assessment alternative that had been inserted at the behest of judges.
They argued that having judges and probation officers use computerized risk assessment tools would perpetuate discrimination against poor defendants and could result in more, rather than fewer, being locked up while awaiting trial.

Dynamics of SB 10 Are Remarkably Similar

With Brown’s support, the Legislature set aside the opposition from both pro- and anti-bail groups but in doing so violated the unwritten rule that requires broad support from affected interest groups before making a major policy change.
Brown, particularly, should have known that acting without such support was perilous since one of the major accomplishments of his first governorship four decades ago was undone by the same unwritten rule.
He had, after laborious effort, won legislative approval of a “peripheral canal” to carry water around the Sacramento-San Joaquin Delta, even though both environmental groups and San Joaquin Valley farmers opposed it, albeit for vastly different reasons.
Farmers and environmentalists then forged a strange bedfellows alliance to challenge the peripheral canal via a 1982 referendum. By a 2-1 margin, voters rejected the canal and later that year also rejected Brown’s bid for a U.S. Senate seat.
The dynamics of SB 10 are remarkably similar, with those on both sides of the issues forming an informal alliance to sink the measure. Bail bond agents have put up the money to place a referendum on next November’s ballot while the criminal justice coalition that also opposed the bill has launched a campaign to denounce the risk assessment program that would replace bail.
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‘It’s About More Than a Referendum’

JusticeLA Coalition, an umbrella group of criminal justice reformers, is opposing plans by the State Judicial Council, an arm of the state Supreme Court that represents judges, to proceed with risk assessment pilot programs even though SB 10’s provisions are on hold pending the outcome of the referendum.

“Replacing money bail with a new system of e-carceration is not progress; it’s the status quo masquerading as reform,” Scott Roberts, a coalition leader, said as the group staged a protest outside the Judicial Council’s offices in San Francisco this month. “Without community input, SB 10’s early implementation will harm the exact same people who have been targeted by mass incarceration and on a similar scale.”
Does its criticism of SB 10 mean that Roberts’ coalition will directly support the bail agents’ campaign to erase the law?
In an interview, Marena Blanchard from Color of Change, one of the coalition members, hedged a bit. “We’re not for SB 10,” she said. “We don’t want to see it become law.” However, she stopped short of formally supporting the bail agent referendum, saying, “It’s about more than a referendum.”
CalMatters is a public interest journalism venture committed to explaining how California’s state Capitol works and why it matters. For more stories by Dan Walters, go to calmatters.org/commentary.