Criminal justice reformers have long called the U.S. courts system's reliance on money bail unjust: The wealthy, they argue, can simply buy their pretrial freedom, while the poor are stuck behind bars or get pressured into taking a plea deal.
This summer California became the largest state to abolish money bail. The historic move goes into effect next fall. But many of those who've pushed hardest for bail reform say this new system may be worse than the old one.
In the downtown San Francisco public defender's office, you might think attorney Chesa Boudin would be excited about the recently signed California Senate Bill or SB ten, which gets rid of money bail in America's most populous state.
After all, Boudin and fellow public service lawyers have long called money bail an unconstitutional pillar of a biased legal system in which the size of your bank account often determines who gets out of pretrial custody.
The new [law] doesn't actually change the racist system of mass incarceration. It just expands it.
And the poor and people of color often end up on the losing end. But the deputy public defender is not in a celebratory mood.
"I was disappointed and I felt betrayed," Boudin said. "The new SB 10 doesn't actually change the racist system of mass incarceration. It just expands it."
The new law was in response to a state court decision declaring the cash system an unconstitutional denial of due process. California is the largest state to move to do away with money bail entirely. New Jersey enacted a similar law, although there are still a few circumstances in which cash bail is allowed. Washington, D.C. largely did away with cash bail back in the 1990s.
Now, instead of setting bail, a judge in California starting year will use a computer program as part of the process to determine whethera suspect is a low, medium or high risk for flight or to public safety.
Boudin believes the new law would dramatically expand number of people who will be detained pretrial. He points to one section in particular that is so broadly worded it could encompass anyone for any offense. That, Boudin argues, tilts the power ever more into the hands of prosecutors, police and judges.
"Under SB 10, now prosecutors can seek detention for virtually any crime," Boudin explained. "Regardless of whether it's violent or involves weapons or whether the person accused has a prior history. Under this law prosecutors have the discretion to seek pre-emptive detention of a person with no criminal record charged with a low level misdemeanor."
Boudin worries that if, for example, someone is taken in for trespassing on federal property during a protest, judges could put them in preventive detention before they're convicted of any crime or before any evidence has actually been presented against them.
And then there's the law's impact on plea deals. Currently, across the U.S., more than 90 percent of criminal cases are settled in a plea deal that could include dismissal or a diversion program, not a trial.
Attorney John Raphling, senior criminal justice researcher at Human Rights Watch, says he's deeply concerned that the bill simply replaces the coercive power of money bail detention with the coercive power of pretrial detention to force more onerous plea deals. That often serves, he said, to pressure people of color and the poor to plead guilty to lesser crimes — often regardless of their actual guilt.
"This is pervasive in the criminal justice system, this happens every single day," Raphling said. "The new bail reform law in California does not address that problem. Now you're just giving them a whole other mechanism to keep people in."
The ACLU, and more than a dozen other legal groups, have raised similar concerns. "The problem that we have with the law is that it replaces this current system with another system that could be even worse, [and could] lead to an increase in pretrial detention and that gives way too much power to judges and to prosecutors without unnecessary oversight," the ACLU's deputy national political director Udi Ofer told NPR.
The bill also mandates use of pretrial assessment tools such as a computer program that will measure risk after inputting arrest and conviction history and other data. That algorithm gives the bill a veneer of objective science, Raphling said, but in fact becomes a kind of feedback loop merely reflecting social biases.
"It's a pretty well documented fact that police stop, search, detain, [and] arrest black people more than white people, poor people more than wealthy people. And that the courts treat people of color and treat poor people worse. [These] are the very factors that these risk assessment tools are looking at to judge who's higher risk."
And it's not yet clear just what data would actually go into the algorithm. The bill doesn't say. In fact, each county can create its own tool or buy one from a company or non-profit if approved by the California Judicial Council, an oversight body controlled by California's judges.
San Francisco and other California jurisdictions are already using such assessment algorithms to help determine release eligibility, not without controversy, as we've reported. Investigations of criminal risk assessment algorithms in some states have found hidden discrimination in the tools.
"If you're using these risk assessment tools which are inherently biased you're not actually changing the bias within the system and you're potentially making it worse," Human Rights Watch's Raphling argues.
Raj Jayadev, co-founder of the social and legal advocacy group Silicon Valley De-Bug, worries that the assessment tool will open the way for more people to be held behind bars, especially in the state's more conservative areas.
"Local counties based on their political environment and based on their own tendencies around incarceration could increase the net of pretrial detention by simply changing the dial and saying that not only are higher risk people now excluded from release but we also think this broad swath we considered moderate risk would also be excluded from release," Jayadev said.
Cherise Fanno Burdeen, CEO of the non-profit Pretrial Justice Institute, admits the new law is far from perfect. But she says some concerns are a bit alarmist. Burdeen notes the decision to detain or release pretrial has always resided with judges. This new law, she thinks, will help judges get it right more consistently, "as opposed to playing some game called 'let's guess how much money I can request the court to set that would result in the detention of this individual' which is a violation of someone's due process rights."
"All that the new system will do is help courts make better decisions," she said. "It should also result in the right people being identified as a threat to public safety. And it should result in fewer people being needlessly incarcerated pending trial."
Meantime the bail industry, which would be put out of business under the new law, hopes to overturn it at the ballot box. An industry coalition is currently collecting signatures for a state-wide ballot initiative.
That may put bail bondsmen in an awkward, de-facto alliance with scores of progressive legal groups who say they'll be ready to challenge the law's constitutionality in court as soon as it takes effect.
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