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SCG Public Policy Analysis: SB 10 (Hertzberg) – Pretrial Release

Publication date: 
Monday, April 24, 2017

Senate Bill (SB) 10, introduced by Senator Bob Hertzberg, proposes to restrict the practice of setting monetary bail. This bill creates a statewide risk assessment tool to determine if an arrested person will be a threat to public safety or will fail to appear in court as required.  The judge must consider the assessment for the defendant, except when the person is held for a specified violent felony, and determine either conditions of release or monetary bail that is set at the least restrictive level necessary to assure appearance in court.   



On average, 63 percent (or roughly 46,000 Californians) await trial or sentencing in a jail cell simply due to an inability to afford bail.  Persons who cannot afford to pay bail may wait in jail for weeks or months before their cases go to court, even when the charge is a misdemeanor. The consequences of pretrial detention can negatively affect individuals, who may end up losing their jobs, homes, and family connections.

According to a 2016 study of Philadelphia’s pretrial system, pretrial detention can have unintended impacts. In that city, detainees had an increased likelihood of pleading guilty, even when innocent, to avoid spending more time in jail to await trial. Detainees also served longer sentences upon conviction.  These practices disproportionately affect low-income people who cannot afford bail. They also disproportionately affect people of color; bond amounts for African American men are 35 percent higher than bond amounts for white men; and Latino men face bond amounts 19 percent higher than their white counterparts.

Pretrial detention is an emerging issue nationwide. The following states have recently passed legislation to establish or expand pretrial service agencies to administer conditions for release:

  • Colorado
  • Hawaii
  • Kentucky
  • Nevada
  • New Jersey
  • West Virginia
  • Vermont

In particular, Colorado and Kentucky have pursued bail changes that release low-level offenders without bail.  For both states, these reforms have increased release rates, and maintained court appearances and public safety rates. New Jersey is the most recent state to enact far-reaching changes to its bail system, using a risk assessment tool to nearly eliminate the practice of setting bail.

These states have followed Washington, DC’s longtime pretrial release system. According to data collected by the DC Pretrial Services Agency, the District of Columbia’s bail-free system has released about 90 percent of all arrestees.  Of those released, 88 percent were not arrested again before their cases were resolved, and less than 1 percent of those re-arrested were alleged to have committed a violent crime. 

Compared to the rest of the country, California has relied on pretrial detention at much higher rates. In addition, the median bail amount in California is $50,000, which is more than five times the median amount in the rest of the country.  In December 2016, the State Legislature introduced intent to reform the state’s pretrial system (AB 42 – Bonta) to reduce the number of people detained pretrial, while addressing racial and economic disparities in the existing pretrial detention practices.  This bill complements that effort.


Existing Law

State Law: Existing state law requires that a defendant being held for a misdemeanor offense is entitled to be released on his or her own recognizance, unless the court makes a finding on the record that the defendant would compromise public safety or not reasonably ensure the defendant’s required court appearance. 

Examples of misdemeanors include petty theft, driving on a suspended license, vandalism, and assault. In addition, existing state law requires the court to take into consideration the protection of public safety, the seriousness of the offense charged, the previous criminal record of the defendant, and the probability of the defendant’s appearance in court when setting bail.

Federal Law: SB 10 would not affect federal crimes.


Proposed Solution: Reduce Unnecessary Detention

SB 10 seeks to reduce the number of people held in jail awaiting trial. Specifically, this bill requires the pretrial services agency to report on recommendations for release for a defendant, except when a person is arrested for specified violent felonies. The recommendations are based on a validated risk assessment tool that is given within an unspecified number of hours after the arrest, and determines the defendant’s likelihood of compromising public safety and failure to appear in court.

A risk assessment tool is considered validated once peer-reviewed research and statistical analysis proves that produced results are accurate. The judge must consider the report when deciding whether or not to release the defendant without bail. The court may also order monetary bail set at the least restrictive level necessary to assure the defendant’s court appearance.   

Reducing the detention of misdemeanor offenders will affect approximately 50,000 to 80,000 Californians per year, according to a nonpartisan 2014 study by the Public Policy Institute for California. This bill will also reduce the $4.5 million the state spends per day to incarcerate people waiting for cases to be resolved.  Additionally, reducing unnecessary detention could potentially reduce the number of jail deaths as roughly 80 percent of all jail deaths occur during pretrial detention, in which a quarter of these deaths are suicides.


Support: Make Detention More Fair

More than 65 equity, nonprofit organizations, and community organizations support SB 10. Supporters suggest that this bill will help fix a current bail system that discriminates against low-income Californians and people of color. They note that most Californians cannot afford to post bail and must either stay in jail or pay substantial nonrefundable fees to a bail bond company. Supporters also point to successful models of bail reform in California’s counties and in other states.  


Opposition: Risking Public Safety

At this time, SCG staff is unaware of any official opposition to this bill as amended.  However, in previous iterations of the bill’s concepts in other states, opponents have suggested that releasing low-risk defendants with misdemeanor charges would pose a public safety concern. Additionally, opponents note that releasing a defendant increases uncertainty as to whether or not more defendants would still appear in court. Lastly, representatives of the bail bond industry note that reducing the state’s dependence of monetary bonds would negatively affect their fields, which bails people out of jail and ensures their appearance in court without any cost to the taxpayer.

For more information, please contact Michelle Ito, Public Policy Intern, at [email protected]

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