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LEGISLATION COMMITTEE

Meeting Date:	08/13/2018
Subject: Update on SB 10 (Hertzberg) – Bail Reform
Submitted For:	LEGISLATION COMMITTEE
Department:	County Administrator
Referral No.:	2018-24
Referral Name:	Update on SB 10 (Hertzberg) – Bail Reform
Presenter:	L. DeLaney & Ben Palmer	Contact:	Donte Blue, 925-335-1977

Information

Referral History:

The Legislation Committee and the Board of Supervisors have considered and taken action on SB 10 (Hertzberg) Bail: Pretrial Release since 2017. On Feb. 13, 2017, the Legislation Committee considered the consistency of AB 42 (Bonta) and SB 10 with the Adopted Platform and voted to recommend support to the Board of Supervisors. The Board took action on March 14, 2017 to adopt a "Support" on AB 42 and SB 10. Subsequently, after the bill was further amended on 7/15/17, the County Administrator recommended that the Board adopt an amended position of "Oppose Unless Amended," which the Board approved on July 18, 2017.

Referral Update:

The following update was provided by CSAC staff to County Legislative Representatives and Criminal Justice Analysts:

"The California State Association of Counties is opposed to Senate Bill 10 (Hertzberg), which would overhaul the bail system in California. Senate Bill 10 is currently in Assembly Appropriations. For it to move this year, it has to pass out of appropriations by August 17^th. There have been a number of rumors that the author is working on amendments and that there will be an effort to move this bill. CSAC will be monitoring this closely and will alert counties should the legislation begin to move again.

There are a couple of additional factors that are now in play with regard to bail reform. First, the Humphrey case is currently pending before the California Supreme Court. In that case, the appellate court issued a ruling on bail reform that required California judges to consider a defendant’s ability to pay when setting bail beginning in January. The Supreme Court has stated that it will consider specific questions: “(1) Did the Court of Appeal err in holding that principles of constitutional due process and equal protection require consideration of a criminal defendant's ability to pay in setting or reviewing the amount of monetary bail? (2) In setting the amount of monetary bail, may a trial court consider public and victim safety? Must it do so? (3) Under what circumstances does the California Constitution permit bail to be denied in noncapital cases?”

Another factor that has recently arisen is the use of pre-trial risk assessments. Last week, civil rights groups that include the American Civil Liberties Union (ACLU) and the National Association for the Advancement of Colored People (NAACP) Legal Defense and Educational Fund issued a document outlining their concerns about pre-trial risk assessment tools. (This document can be found at: http://civilrightsdocs.info/pdf/criminal-justice/Pretrial-Risk-Assessment-Full.pdf.) Senate Bill 10 would require the use of an assessment tool.

According to Government Technology, “Several of the cosigners of [Monday's] statement are sponsors of SB 10 and have been dedicated partners in our bail reform efforts,” Sen. Robert Hertzberg, who co-authored SB 10, told Government Technology. “Our negotiations are ongoing, and we rely on the input of stakeholders to ensure that when we enact bail reform, it works for all Californians.”

Natasha Minsker, director of the ACLU of CA Center for Advocacy & Policy, agrees. “Yesterday, the national ACLU signed onto a statement along with other civil rights, digital justice and community-based organizations, which included a call for important policy reforms to accompany any use of pretrial risk assessment tools. SB 10 is consistent with this call and includes the policy reforms identified,” Minsker said. “California urgently needs bail reform. We need to replace the current system with one that prioritizes justice and public safety, not industry profits. We remain committed to passing SB 10 and making 2018 the year of bail reform in California.”
(http://www.govtech.com/public-safety/Civil-Rights-Groups-Call-for-Reforms-on-Use-of-Algorithms-to-Determine-Bail-Risk.html)"

Recommendation(s)/Next Step(s):

RECEIVE the report from CSAC on the status of SB 10 (Hertzberg) and provide any necessary direction to staff.

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