End Money Bail – Rosenberg Foundation

California Organizers Don’t Want This Kind of Bail Reform

Mon, 10 Sep 2018 21:01:43 +0000

In late August, Raj Jayadev and Jose Valle led a group of Bay Area residents to the California Capitol in a last-ditch effort to prevent Gov. Jerry Brown from signing a bail reform bill that is a revised version of a measure that Jayadev, Valle and many activists once supported.

The measure, known as SB 10, would “mass incarcerate our people,” Valle told a state representative after handing him a letter signed by community organizations that share Valle’s concern.

Jayadev advocated for “real bail reform,” urged the governor not to taint his legacy by signing the bill, and with the others chanted, “Veto SB 10, Veto SB 10!”

This encounter took place Aug. 23, just days after the bill, which eliminates money bail in California, passed the Assembly. It will replace a cash bail system with “risk assessment” tools. Counties will have to use computer algorithms to determine how likely it is that a person facing trial will flee before a court date or commit a crime if not held in jail.

On Aug. 28, the governor signed SB 10.

In a statement, Brown said the new law guarantees “that rich and poor alike are treated fairly” when accused of crimes.

Research shows that in California, most people held in county jails have not been sentenced and are serving time because they’re unable to pay for pretrial release. That’s why many criminal justice advocates spent two years rallying for a different version of SB 10 and helped state Sen. Bob Hertzberg, a Democrat, craft a measure.

Valle, Jayadev and other criminal justice reform organizers fear the version that’s been passed gives too much power to judges.

“It’s definitely a fake bill,” Valle says. “It’s a tragedy that it passed.”

Starting in October 2019 in California, people accused of committing low-level misdemeanors will be released within 12 hours of being booked. They won’t undergo a risk-assessment exam.

People accused of felonies and who are deemed “low risk” by the assessment test will be released. The release of those considered medium risk will depend on the courts. Offenders deemed “high risk” will see a judge at arraignment. “High-risk” defendants may await trial in jail if they’ve been convicted of a serious or violent felony in the last five years.

As big data-driven decision-making has become more popular, many critics have pointed out that computers have failed to remove racial bias — often to the detriment of marginalized communities. A ProPublica study in 2016 found that software designed for pretrial risk assessment was often inaccurate and biased against black people.

Human Rights Watch, which also opposes SB 10, says risk-assessment tools “tend to reinforce the system’s ingrained biases and lack transparency.”

“The data they use, especially arrest and conviction history is greatly skewed by racial and class bias in policing and court outcomes and social inequities,” the organization noted in an Aug. 23 statement.

American Civil Liberties Union of California officials — who supported earlier versions of the measure — in a joint statement that same day said they “welcome an end to the predatory lending practices of the for-profit bail industry,” but said the measure does not “provide sufficient due process nor adequately protect against racial biases and disparities that permeate our justice system.”

Oakland-based Essie Justice Group, a nonprofit helping women with incarcerated loved ones, has long advocated for cash bail reform but opposes what passed in Sacramento. The group released a statement that included: “In a sad twist after years of work, this bill as amended in the final days subjects nearly everyone arrested to a new system of expanded pretrial incarceration and preventative detention. People who could get out and go home today pretrial, albeit at great cost to a bail bondsman, would have to stay incarcerated the moment this bill goes into effect.”

Some Democratic lawmakers, however, see this bill as a crucial first step.

Assembly Member Reggie Jones-Sawyer, as quoted in KQED, said the Legislature will have to revisit the issue next year.

“We are going to have to come at it again and again … until we get the system that we want … until we build a system that is equitable and provides justice for all,” he told KQED.

Assembly Member Shirley Weber called the bill a giant step forward, according to KQED.

“It requires courage sometimes to step forward and not just make that change, but work to make that change right,” she said.

For Valle and Jayadev, who are part of Silicon Valley Debug, a San Jose-based organization that helps families with incarcerated loved ones, the bill’s passage is bad news for the people they serve.

Their organization often helps families who go to them when their loved ones are arrested.

Valle says he helps families navigate the court system by encouraging them to do more than just depend on their attorneys. He helps them understand the court process and penal codes. He guides them through testimonies and evidence. He helps them create biography packets for incarcerated people because it “humanizes them,” he says.

“Money bail is an issue, but we can’t replace the bail industry with the prison industry,” he says. “[Bail companies] are only businesses that were able to capitalize off of the enemy, and I think the enemy is injustice in our courts, in our policy and laws, and in bail.”

View original article

]]>

So Much for The Great California Bail Celebration

Thu, 30 Aug 2018 07:16:00 +0000

To great fanfare, California Gov. Jerry Brown this week signed into law the nation’s most radical overhaul of bail, essentially abolishing cash bail and putting bondsmen out of business.

In a statement, Brown declared the new law would assure that “that rich and poor alike are treated fairly” when accused of crimes.

But even before the governor signed it, the new law was under sharp attack from some surprising voices — criminal justice advocacy organizations that have long sought to overturn the state’s cash bail system.

In the days leading up to the bill’s passage, many proponents of bail reform pulled their support. Several, including the ACLU, Human Rights Watch and San Francisco Public Defender Jeff Adachi, disavowed the law completely.

“We believe it is too weighted in the direction of detention and gives too much power to judges,” said Natasha Minsker, director of the ACLU of California Center for Advocacy and Policy. “There are some positives, but we are concerned that we are creating a whole new system, and that the foundation has cracks in it.”

Many criminal justice reform advocates have cited evidence that the cash bail system unfairly targeted the poor, forcing those who could not post bail to languish in jail while awaiting trial. Advocates also argued that the cash bail system pressured defendants to take plea deals, even if they were innocent of the charges, so they could get out of jail and return to their lives.

To that end, a coalition of groups, including grassroots organizations throughout the state, worked with state Sen. Bob Hertzberg, a Democrat, to craft a bill aimed at changing the system.

The bill, known as SB 10, essentially replaces cash bail with a county-based system that relies on probation departments to provide pretrial services and uses risk-assessment tools to gauge whether a person is a safety risk to the community.

In the last few weeks, as the legislative session came to a close, advocacy groups objected to new amendments added to the bill and began to withdraw their support, saying the new provisions gave too much power to judges and put too much faith in risk-assessment tools, tests that predict whether an individual is likely to offend again.

“This bill, in the 11th hour, was hijacked,” said Gina Clayton-Johnson, founder and executive director of Essie Justice Group, a nonprofit that works with women with incarcerated family members. “We entered this in a really pragmatic way. The fact of the matter is, this bill takes us backwards.”

At issue is what these advocates view as a system that gives almost absolute power to local judges, who are elected officials in California and might be tempted to pander to law-and-order voters by keeping defendants locked up.

“The good is that it eliminates money bail completely, and the bail industry will no longer have a role in profiting from people who have no choice but to post bail,” said San Francisco Public Defender Jeff Adachi. “But in many ways, it replaces one evil with one that’s even worse in that it gives unbridled discretion and power to judges.”

Under the old system, defendants were given a bail amount to post, and those who could afford it could be released. Judges could order that defendants be held without bail if they represented a public threat or a flight risk.

The new system includes a presumption against release for people accused of violent felonies and for those who score high on a risk assessment tool.

People accused of low-level misdemeanors will be booked and released within 12 hours, with some exceptions, such as domestic violence. They won’t undergo a risk assessment.

People accused of high-level misdemeanors or low-level felonies will undergo screening using a risk assessment tool that will typically be administered by county probation departments. Most of those who score “low risk” will be released within 24 hours.

The courts will determine the fate of defendants deemed “medium risk.”

People the test ranks as “high risk” will see a judge at arraignment. Those charged with a violent felony or with other factors that weigh against them, such as a conviction for a violent or serious felony within the last five years, will usually await trial in jail.

For Senator Hertzberg and others who continue to back the new law, including the Service Employees International Union, which represents many relatively low-income workers, removing money from the system is an important step.

“We got into this because we wanted to eliminate the cash bail system,” said Tia Orr, director of government relations for SEIU California. “For us to be the first state in the nation to do this was something we couldn’t walk away from.”

Orr acknowledged the concerns about the bill, particularly that it doesn’t require the gathering and analysis of data on how the new law will play out in courtrooms throughout the state.

Hertzberg has committed to introducing legislation in the next session to require data collection, said spokeswoman Katie Hanzlik.

Criminal justice reformers are also wary of the measure’s heavy reliance on risk assessment tools, many of which have been shown to be skewed against black people.

Although each county will choose its own risk assessment tool, Hanzlik pointed out that a statewide panel of experts, including an expert on bias, will assess each county’s tool and its guidelines.

“Within the first few years, we’ll know whether it’s working the way it should or not,” she said. “We’re relying on everyone at the table to make sure it’s implemented in a way that will benefit people.”

View original article

]]>

Justice in America Episode 6: The Faces of Mass Incarceration

Wed, 29 Aug 2018 18:05:40 +0000

Often, when people talk about the criminal justice system, they talk in big numbers— the millions of people serving time, the billions of dollars mass incarceration costs each year, the hundreds of thousands in jail at any given moment. But talking in big numbers sometimes obscures the fact that we’re discussing real people on this show—human beings, not statistics. On this episode, we discuss who these people really are and how this system affects not only their lives but the lives of their friends and family, particularly their partners and children. In particular, we explore look at how mass incarceration hurts women with loved ones involved in the system.

Our guest this episode is Gina Clayton, the Executive Director of Essie Justice Group, who joins us to discuss the phenomenal organization she has built focused on women with incarcerated loved ones.

For more:

Essie Justice Group’s website is here. Please check out the incredible work they are doing. And you should absolutely spend some time looking at their new report, Because She’s Powerful.

This report from the Economic Policy Institute, Mass Incarceration and Children’s Outcomes, gives more information about how parental incarceration affects kids.

The story we discuss of the biological mother whose three children were taken from her and later killed by their adopted parents is here. Roxanna Asgarian, the journalist who covered the story for The Appeal, also appeared on The Appeal Podcast with Adam Johnson. You can hear that episode here.

The report “Who Pays?” looks at how the criminal justice system affects not only those incarcerated, but their family and loved ones. It was produced by Ella Baker for Human Rights, Forward Together, and Research Action Design, with support and collaboration from many other organizations.

Justice in America is available on iTunes, Soundcloud, Sticher, GooglePlay Music, Spotify, and LibSyn RSS. You can also check us out on Facebookand Twitter.

View original article

]]>

California Ended Cash Bail. Why Are So Many Reformers Unhappy About It?

Wed, 29 Aug 2018 17:51:51 +0000

California Gov. Jerry Brown signed into law this week a plan, years in the making, to end the use of cash bail in the state’s criminal justice system. But what once promised to be an unambiguous policy victory for the most progressive state in the country seems instead to have become a lesson in the inherent political and legal difficulties of enacting criminal justice reform.

The law has exposed deep fissures within the criminal justice reform movement. Social justice advocates that had once championed the initiative to abolish cash bail mobilized against the final iteration of the bill, which they saw as having morphed from righteous to dangerous. John Legend, the singer, activist and California resident, channeled those critiques last week when he pleaded over Twitter to the governor, “@JerryBrownGov #BailReform is needed, but NOT #SB10 which replaces the predatory for-profit bail system with a system that threatens to expand unfair incarceration of communities of color.”

“How unfortunate it is that the great state of California, which is the beaming light of progressive change, caved,” said Norma Chavez-Peterson, executive director of the ACLU of San Diego and Imperial Counties, one of multiple California chapters of the civil rights organization that renounced the bill. “It’s sad we couldn’t do something bolder.”

What’s the problem? The new law, which will take effect in October 2019, will replace the old system of money-based freedom with a new one of risk assessments and preventive detention. In critics’ eyes, that means California will continue to give local judges the sweeping authority to keep people incarcerated before they’re convicted of anything.

At the same time, the critique of bail as biased against poor people, unnecessarily costly and one of the main drivers of the mass incarceration of African-Americans, has gained mainstream bipartisan backing. Sens. Kamala Harris, a Democrat from California, and Rand Paul, a Republican from Kentucky, called the bail system “predatory and wasteful” in a New York Times op-ed last year. And states like New Jersey, New Mexico and Kentucky have already chipped away at—though not completely eliminated—cash bail.

But some groups in California and around the country now worry that the nation’s largest state has embraced a well-intentioned but wrongheaded proposal that could fail to diminish—and even drive up—the numbers of people detained before their trials, undermining a broader movement to move away from incarceration. And they fear for the ripple effects when California, as it so often does, leads the way.

“We do believe it has profound national consequences to use the movement for bail reform, which is fundamentally about reducing the number of people in jail and reducing pre-trial detention,” says Sharlyn Grace of the Chicago Community Bond Fund, “to expand pretrial detention.”

***

Four decades and multiple presidential runs ago, Gov. Jerry Brown castigated cash bail in his State of the State address as “an obvious tax on poor people.” In the intervening years, the number of pre-trial inmates and average bail amounts rose in parallel, entrenching a system of detention that appeared to be based more on the contents of someone’s wallet than the severity of the alleged crime.

Yet the new law also poses an existential threat to California’s roughly 150 bail agencies. Anti-bail advocates found themselves confronting a bail bonds industry that has spent more than $600,000 lobbying Sacramento since 2017, a legislative blitz that brought Dog the Bounty Hunter to the California capital.

“There’s no need to eliminate the bail industry,” a representative of Aladdin Bail Bonds implored lawmakers. But a state appeals court said there is, deeming excessively high cash bail unconstitutional in January in a stinging opinion that excoriated “a deformity in our criminal justice system.” The day after the law was signed this week, bail industry groups announced plans to ask the state’s voters to overturn it by referendum.

As it turned out, the California court system’s rule-making arm, the Judicial Council, played the preeminent role in determining bail’s vanishing future in California. The judiciary’s ideas propelled the bill to passage even as they united the bail industry and previously supportive social justice advocates in opposition. At the urging of California Supreme Court Chief Justice Tani Cantil-Sakauye, the council released a report last October that recommended replacing cash bail with a “risk-based pretrial assessment and supervision system.” In other words: Whether someone is put in jail shouldn’t depend on that person’s ability to pay but on the likelihood that the person will show up in court again and the risk otherwise posed to others.

Implementing that recommendation ended up creating “a fork in the road,” according to Assemblyman Rob Bonta, a Democrat who was one of the chief legislative backers of the movement.

“It gave the credibility to all of us that this wasn’t just some interest group-driven deal,” says state Sen. Bob Hertzberg, a former Assembly speaker who says this bail bill has consumed more time and effort than anything else in his long political career.

***

“In the end, we finally arrived at what is—in my view—the most aggressive, transformational bail reform in the nation,” Bonta said. Existing California law instructs judges to weigh a person’s criminal record and the gravity of the alleged offense in setting bail, and while some judges used formal risk assessment tools, it wasn’t required of them. Different counties also hewed to a patchwork of bail schedules, meaning the same crime could carry different consequences depending on where it was allegedly committed. The new law eliminates the use of cash bail entirely and requires pre-trial risk assessments to be considered for the preventive detention of accused criminals in every county in consultation with the state’s probation officers, which supporters say will make decisions more objective.

But where some backers see momentum, others see betrayal. Critics fear the new law will institutionalize racial bias, as judges will still retain the ultimate authority to decide whether to detain someone before their trial. The ACLU, NAACP and Human Rights Watch all abandoned their support for a move they initially hailed as a breakthrough for justice and fairness. In these backers-turned-detractors’ eyes, eliminating bail was a means to an end: The real goal was fewer people in jail before trial. They now worry that California will head in the opposite direction.

“What you’re really doing is trading off one beast for the next,” says Pete White, executive director of the poverty-focused Los Angeles Community Action Network. “We had not been fighting for preventive detention, the expansion of judges to hold just about anybody they want to hold as a replacement to the bail bond industry.”

“The more time passes, the angrier people are going to get when they think about what happened,” says Raj Jayadev, the coordinator of a group called Silicon Valley De-Bug that pushed the bill in the early going but peeled off at the end. “They co-opted the bail reform movement to test out a new preventive detention system,” he says.

The new system will sort alleged offenders into categories: People who are accused of committing most misdemeanors will be released without going through a risk assessment, while those who are accused of more serious crimes can be held until their arraignment or trial, depending in large part on the decisions of judges and prosecutors.

It seeks to make objective assumptions about who is detained by mandating the use of pretrial risk assessments, which sift through factors like criminal and employment history to project future behavior. By buttressing judges’ discretion with “gobs of data,” says Martin Hoshino, administrative director for the Judicial Council, “the research suggests you’ll get better outcomes.”

But advocates warn that those tools are compromised by the biases that underlie the deeper structural problems with America’s justice system.

“This bill unfortunately is going to lead to people being held in preventive detention based on government’s assessment of who’s risky and who’s scary,” says Robin Steinberg, CEO of the Bail Project. “That’s a terrifying idea,” she says, warning of “a pretrial services industrial complex that will inevitably grow to become a massive governmental administration.”

Supporters pushed back on those alarms. Jessica Bartholow, a lobbyist for the Western Center on Law and Poverty who was immersed in negotiations, says the final bill achieved the goal of erasing “the distinction between someone who has wealth and someone who doesn’t in the criminal justice system.” She echoed supporters in noting that judges already have broad powers to detain people using bail. At least now the system won’t be based solely on money, they say.

***

In the days leading up to the vote last week, groups representing politically formidable law enforcement players like district attorneys and police chiefs went neutral on the bill as onetime advocates turned away. Even as lawmakers touted the deal on the Assembly floor, the frustration and uncertainty was palpable.

Someone shouted “liar” as Bonta spoke. Assemblywoman Shirley Weber, a champion of police reform, cited “great concerns about the issue of social justice” and warned that the bill “is going to give more power to our judges.”

“There’s still tremendous bias in our district attorneys and how they charge poor people for higher crimes, and there’s still bias in our judges and how they look at people of color and people who are poor,” she said.

But in the end, she voted for it. So did Assemblyman Reggie Jones-Sawyer, who acknowledged the political headwinds: “I have the ACLU coming at me saying ‘we’re going to lock up more people, more poor people, more African-American people … but I have the bail bonds people on the other side saying that ‘we’re going to be letting a bunch of people out.” Nevertheless, he said, “History will show that using a risk assessment system will be the way to go.”

He wasn’t the only one looking to history. Many legislators implored one another to not pass up a chance, however flawed, to promote more equal treatment under the law, regardless of a person’s means. They see it as a rare victory for justice.

“It is the biggest victory this nation’s ever seen with respect to money bail—it totally removes it from the system, and I think that will be a model for other states,” Bonta says.

But others see this historic moment through a different lens: It could instead serve as a cautionary tale, as the nation’s largest, ostensibly most progressive state fumbled its chance at true change. Steinberg called the night of the bill’s passage through the state Legislature last week “one of the most demoralizing nights I’ve had in 35 years of toiling in the criminal justice system.”

“These types of reforms are generational,” says Joshua Norkin, who coordinates the New York Legal Aid Society’s decarceration project, “and if you give up an opportunity for a substantial reduction in the jail population by passing a watered-down reform, then you may give up an opportunity to revisit that issue for another 20 years.”

View original article

]]>

California Is the First State to Scrap Cash Bail

Tue, 28 Aug 2018 18:30:28 +0000

SAN FRANCISCO — California on Tuesday became the first state to fully abolish cash bail, a step that backers said would create a more equitable criminal justice system, one less dependent on a person’s wealth.

“Today, California reforms its bail system so that rich and poor alike are treated fairly,” said Gov. Jerry Brown, who signed the California Money Bail Reform Act into law on Tuesday.

The driving principle of the law is that a suspect will be evaluated on the basis of risk to public safety and the likelihood of not appearing in court, rather than on his or her ability to post a certain bail amount. Those evaluations would help determine if the suspect would be held while awaiting trial or released.

The California law is part of a wave of criminal justice reforms taking place across the country. A number of states, including New Jersey, New Mexico and Kentucky, have sharply curtailed their cash bail system, but California is the first to completely dismantle it.

“This is a transformative day for our justice system,” said Tani Cantil-Sakauye, the chief justice of California and a main backer of the legislation, in a statement. “Our old system of money bail was outdated, unsafe and unfair.”

She called the new law “a fair and just solution for all Californians.”

But the law, which will take effect in October 2019, was criticized by some as giving the courts too much power.

“The bill gives a lot of power to the courts, which may be used in ways that raise concerns,” said Natasha Minsker, an advocate in the California branch of the American Civil Liberties Union, which opposes the law. Ms. Minsker also said the law “lacks protections against racial bias.”

The details of how individuals will be assessed has been left for California’s judiciary to work out. And some legislators said the state was moving too fast on a very complex issue. The bill passed the State Assembly last week by a 41-27 vote.

The law relies on the state’s Judicial Council, a body that sets the rules for California’s courts, to create the new system of pretrial assessments. Suspects will be classified into “low risk,” “medium risk” and “high risk” by Pretrial Assessment Services, which already exist in some California counties but which will be somewhat standardized by the law.

The law allows courts to detain a suspect “if there is a substantial likelihood that no condition or combination of conditions of pretrial supervision will reasonably assure public safety or the appearance of the person in court.”

Even social justice organizations that are united in their criticism of the current system, and the bail bond industry that has developed around it, were divided over the new law, with some claiming it could lead to more people behind bars.

The Essie Justice Group, a California organization formed by women with relatives and loved ones in prison, lobbied against the new law, saying it could lead to “more and disproportionate incarceration of black, brown and low-income people.”

The new law gives too much discretion to prosecutors, who could call for preventive detention for a broad range of crimes, the group argued. “This is incarceration without any due process,” Essie Justice said in a statement.

California had already taken steps earlier in the year to mitigate the effect of cash bail on the indigent. In January, a California Court of Appeal criticized the practice of setting bail above what defendants can pay, ruling that a defendant “may not be imprisoned solely due to poverty.”

The ruling came in a case involving Kenneth Humphrey, 64, who spent almost a year in jail, unable to afford his $350,000 bail, after he stole $5 and a bottle of cologne from a 79-year-old disabled man. Mr. Humphrey, who has a history of substance abuse and multiple prior felony convictions, had followed the man into his apartment in San Francisco and threatened to put a pillow case over his head, demanding money. He was released in May, pending trial.

Jeff Adachi, the public defender in San Francisco, said that under the new law, there would be a “presumption against release” for that type of offense. “Mr. Humphrey would probably not have gotten out under this new law,” Mr. Adachi said.

View original article

]]>

Jerry Brown signs bill eliminating money bail in California

Tue, 28 Aug 2018 12:47:02 +0000

Gov. Jerry Brown on Tuesday signed sweeping legislation to eliminate cash bail in California. The change, which will take effect in October 2019, goes further than any other state in the country to remove money from pretrial detention.

“Today, California reforms its bail system so that rich and poor alike are treated fairly,” Brown said in a statement.

Under Senate Bill 10, California will replace bail with “risk assessments” of individuals and non-monetary conditions of release. Counties will establish local agencies to evaluate any individual arrested on felony charges for their likelihood of returning for court hearings and their chances of rearrest.

A person whose risk to public safety and risk of failure to appear is determined to be “low” would be released with the least restrictive nonmonetary conditions possible. “Medium-risk” individuals could be released or held depending on local standards. “High-risk” individuals would remain in custody until their arraignment, as would anyone who has committed certain sex crimes or violent felonies, is arrested for driving under the influence for the third time in less than 10 years, is already under supervision by the courts, or has violated any conditions of pretrial release in the previous five years.

Advocates of abolishing bail contend that too many defendants remain stuck in custody because they cannot afford to bail out, effectively creating unequal justice based on wealth. California is at the forefront of a national campaign to end money bail that has also recently seen states like New Jersey and New Mexico adopt polices to circumvent the for-profit bail industry, though none had yet eliminated bail completely.

SB 10 was approved by the Legislature last week, after a nearly two-year push, with largely Democratic support. But it faced heavy opposition from the bail industry and some former supporters of the bill, who said significant amendments to the final version would unjustly expand the number of suspects jailed while awaiting trial.

The American Civil Liberties Union of California, an original co-sponsor of the measure, and other organizations pointed to provisions giving judges greater discretion during the arraignment hearing to decide whether to release an individual and on what conditions. SB 10 also introduces a process for the prosecution to file for “preventive detention,” blocking the defendant’s release pending a trial, if they believe there are no conditions that would ensure public safety or their appearance in court.

]]>

Bail reform bill considered by California legislature

Wed, 08 Aug 2018 08:25:04 +0000

In late 1987, Sheri Costa drove her three young children from Alameda County to Fresno County to see her husband in jail. He had been arrested more than 30 days earlier in Fresno on charges of drug possession with intent to sell and distribute, and the price of his freedom was set: $100,000.

Costa paid a bail bondsman $10,000 in cash, a non-refundable deposit representing 10 percent of the bail. For the bail bondsman to pay the remaining $90,000, she also needed to promise property as collateral. But at 26, she didn’t own a home, so she convinced her friend’s parents to put up their homes.

Over the years, Costa has helped with bail payments for her nephew and neighborhood kids who have had run-ins with the law, on charges ranging from attempted murder to assault.

“The nice thing about having a big family is that you all get to split up the bail payments,” Costa said.

If California’s Senate Bill 10 passes this fall, families like Costa’s might be able to bring loved ones home without the financial burden of bail.

The proposed legislation would drastically reduce the use of money bail, and instead require all 58 California counties to use risk assessments to help judges decide when to release those charged with crimes.

The assessments ask questions to predict whether a defendant will show up to court or commit a crime if they are released. Many counties throughout the state have already begun to implement risk assessments in their pretrial systems.

Proponents of the bill see the proposed legislation as a step in the right direction for fixing an outdated and unfair bail system. But the use of risk assessments is not without controversy.

Some experts and community organizations suggest that SB 10 is too vague and doesn’t address key issues with the design and use of the required pretrial risk assessments.

On July 30, more than 100 organizations — including the American Civil Liberties Union, Color of Change, and the Electronic Frontier Foundation — released a signed statement arguing against the use of pretrial risk assessments because of the concern that they may exacerbate or perpetuate bias in the criminal justice system.

How that report will impact SB 10 will be seen after the state Legislature reconvenes later this month.

Counties that already use risk assessments implement them in myriad ways, according to details culled from over 40 public records requests and 25 interviews.

They use different tools, provide different information to their judges about defendants, and sometimes struggle to find resources to evaluate the tools’ effectiveness.

The differences between counties don’t mean officials are not being fair, experts say, but they do indicate a system that is fraught with misunderstandings over what risk assessment tools can do – and how they can be evaluated.

Using a “pretrial risk assessment tool” isn’t always high-tech.

Most mornings in Napa County, probation officers receive a list with the names of people arrested in the last 24 hours. They head downstairs to the jail and ask a few questions to those who are locked up.

Each answer to an officer’s questions is assigned a number. The officer adds up a defendant’s score — intended to predict whether that person will skip a court date or commit a crime if released — and writes an accompanying report for the judge, who will decide which defendants to release by the end of the afternoon.

Napa’s specific questionnaire, called the Ohio Risk Assessment System (ORAS) pretrial tool is one of many pretrial risk assessments used by counties across the state. San Francisco and Santa Cruz use the Public Safety Assessment (PSA), which was developed by the Laura and John Arnold Foundation. Some counties have worked with research organizations to design their own pretrial risk assessment tool.

Using different tools isn’t necessarily a problem, said Marie VanNostrand, the co-founder of Luminosity, a company that focuses on developing data-driven solutions for criminal justice problems.

“To me, it almost doesn’t matter what risk assessment is used, as long as it’s valid and it’s accurately classifying the risk in an unbiased way,” VanNostrand said.

That question of bias is central to the future of SB 10. The recent statement of concerns about pretrial risk assessments, which included several organizations that back the bill, argues that pretrial risk assessments could perpetuate racial bias and shouldn’t be adopted in jurisdictions that don’t already use them.

But SB 10 would require many counties in California to start using risk assessments for the first time.

The statement also hits on problems highlighted in several research papers. A study commissioned by the Laura and John Arnold Foundation found that one tool overestimated the likelihood of women to commit violent crime compared to men.

Another study found the same effect for a risk assessment used at the federal level. These risk assessments are designed to assign risk scores based on a person’s likelihood of committing a new violent crime, meaning that people with the same likelihood of committing a violent crime should have the same risk score.

But these studies found that among women and men with the same risk score, the women were on average less likely to commit violent crime than the men were — suggesting the women should have been given lower risk scores or the men higher ones.

In short, risk assessment scores can be biased against women by potentially rating them as higher risk than they actually are.

In Wisconsin and New Jersey, courts have tried to curtail this gender bias by allowing gender to be included as a factor used to calculate risk scores. They reason that including gender in the assessments may lead to more accurate ratings.

SB 10, meanwhile, stipulates that risk assessment tools must be “equally accurate across all racial groups, ethnic groups, and genders” to ensure that they are fair, but the proposed bill also bans the use of race, ethnicity and gender in deciding who is released or kept in jail.

While acknowledging the potential for bias, many are optimistic about risk assessments, arguing that they push the system in the right direction.

In response to the July 30 statement critiquing the use of pretrial tools, the justice reform organization Pretrial Justice Institute wrote that tools can have positive effects when used carefully.

“Is there ever going to be a perfect system where an algorithm can predict risk? No,” said Jeff Adachi, San Francisco’s public defender. “But from the data, this is a better way. The risk assessment tools, while not perfect, are better than simply taking a human being and saying ‘you decide.'”

SB 10 leaves many details of risk assessment implementation to each county. The same score — received through the same assessment — could have different results depending on how a county implements the tool.

Judges, who make the final decisions about release or detention, use the risk assessments as one factor in the process. They also rely on their own experiences and discretion when deciding who to release and who to detain.

VanNostrand, who implemented pretrial risk assessments in New Jersey, said that more research is needed on how scores should be translated into recommendations for judges.

“The risk assessment is research-based,” she said. “The recommendation usually is not.”

Another pressing question is whether judges will be required to follow the risk assessment recommendation. In San Francisco, Adachi said, judges often detain defendants for whom a risk assessment has recommended release.

It’s unclear what the final version of SB 10 will say about judges deviating from risk assessment recommendations. Deciding whether to regulate judge discretion means recognizing the “delicate balance” between the state’s legislative, judicial, and executive branches, state Sen. Robert Hertzberg, D-Van Nuys, said.

The issue of judicial oversight — and other aspects of implementation — could also affect counties that already use tools in myriad ways, from what information judges receive to how defendants get released.

Judges in Solano County receive a narrative about each defendant, while judges in Mariposa County get a standardized sheet with the defendant’s risk level, risk factors like previous offenses and sometimes the defendant’s income. It’s not yet clear whether these counties will have to change their practices in response to SB 10.

Many of these decisions around the implementation of risk assessments are political rather than scientific, said Sakira Cook, director of the Criminal Justice Program at the Leadership Conference on Civil and Human Rights, which authored the recent critique of the tools.

When these key implementation decisions are made, “the community must be at the table,” Cook said.

Tim Dowler, who oversees the Ventura County Probation Agency’s adult services bureau, wanted his county to pick a tool that had a history of effectiveness in California when they overhauled their pretrial program in 2011.

That means testing, or validating, whether the predictions about whether a person would show up for court were accurate, based on data about people accused of crimes in California.

“We knew right from the beginning — we were like, ‘What is validated in California?’ and couldn’t find one,” Dowler said.

The county picked the ORAS-pretrial tool, but vowed to evaluate the tool to make sure it was accurately predicting scores. This year, the county will go through the evaluation process with the help of the University of Cincinnati.

Every jurisdiction should follow Dowler’s instinct, said several experts, including VanNostrand. After implementing a tool, counties ought to collect data to test its effectiveness — and continually repeat the process.

But under SB 10, validation is suggested rather than explicitly required. The bill’s language around evaluation says counties should send data to the Judicial Council “when possible” and that tools should be “regularly validated and adjusted.”

Two tools used in many California counties, the ORAS-pretrial tool and a tool from Virginia, were developed based on analyses performed on people going before the court in other states. The “cutoffs” for these tools — the number of points defendants must receive to be considered low-, moderate- or high-risk — might not be the same across all populations.

Evaluating the risk assessment tools isn’t hard, said Edward Latessa, the creator of the ORAS-pretrial tool. Since so many people move through the system quickly, data can be collected about how well a risk assessment works in a year or less.

“There’s really no excuse for not validating the tool on your own population,” Latessa said.

But there are challenges to such evaluation. While some counties have evaluated their tools, others say cost or outdated technology make the process difficult.

In Mariposa County, the probation department’s case management system isn’t technologically compatible with the court’s case management system.

Officials in Mariposa County said they would have to compare data by hand. Monterey County’s Probation Department also cited technological barriers — alongside a lack of funding — as preventing the county from performing a full evaluation study.

Even with those problems, it’s possible that SB 10 will bring greater balance to the pretrial system.

“If someone is booked for the same offense, whether you can afford or can’t afford bail shouldn’t make a difference,” said Ryan Oliphant, assistant chief probation officer in Mariposa County.

For Sheri Costa’s family, the changes proposed by SB 10 didn’t come soon enough.

“We’ve never been fortunate to have pretrial as an option,” she said. “For us, it was always bail.”

View original article

]]>

The Five Biggest Battles During The California Legislature’s Final Month

Mon, 06 Aug 2018 08:51:19 +0000

Four furious weeks of deadline pressure await California lawmakers as they return to the state Capitol Monday after their month-long summer recess

Listen to original broadcast

By the time the Legislature must adjourn for the year — at midnight on Friday, August 31 — lawmakers and Gov. Jerry Brown will grapple with more than a thousand bills, including several that touch on complex and politically fraught issues.

Here’s our look at the five biggest debates they face in their final 18 work days of legislative session:

1. Wildfire liability (SB 901)

By far the most explosive battle this month is how to pay for the billions of dollars in wildfire damages to homes and public properties each year.

It’s a problem that’s amplified amid California’s changing climate and a battle that pits energy utilities like PG&E and their employee unions against insurers, trial lawyers and ratepayers. And it will affect just about every Californian who pays a utility or insurance bill.

The governor has, at least initially, sided with the utilities. He’s asked lawmakers to overhaul a legal standard that makes the companies liable when their equipment starts fires even if they did nothing wrong. And if this particular question is punted until next year, lawmakers will surely seek to do something to show they’re taking what Brown has called “California’s new normal” wildfire risk seriously. For example, they could require utilities to strengthen their fire-planning efforts while allowing them to “securitize” — or spread out — the repair costs over time to both ratepayers and shareholders.

A joint Senate-Assembly conference committee met for the first time last month and will hold four more hearings over the next two weeks. And be on the lookout for side deals and eleventh-hour shenanigans galore.

2. Bail reform (SB 10)

For more than a year now, an effort to overhaul California’s cash bail system has languished in the Legislature.

The Senate approved legislation in May 2017 to implement a pre-trial release system that would evaluate a defendant’s flight risk and danger to the community. But that bill has hardly budged since — despite high-profile endorsements from Brown and California Supreme Court Chief Justice Tani Cantil-Sakauye, an appointee of former Republican Gov. Arnold Schwarzenegger.

Any deal with Brown, however, will need to address his concerns over the potential price tag; a Senate analysis last year suggested the proposal could cost hundreds of millions of dollars.

The bail industry, meanwhile, is mounting a fierce fight to protect its livelihood. The Assembly voted down a bail reform bill last year and poses the biggest hurdle to its passage.

One thing supporters of an overhaul have in their favor: The bail industry would rather deal with Brown than the man they believe will succeed him as governor next year, Democratic Lt. Gov. Gavin Newsom.

3. Net neutrality (SB 822)

Earlier this year, the Trump administration’s Federal Communications Commission repealed Obama-era net neutrality regulations. That prompted an effort to restore some form of net neutrality in California — an effort that has gone through quite a journey in recent weeks.

First, a bill that passed the Senate was gutted in an Assembly committee — a move seen by critics as a hostile takeover by a committee chairman doing the bidding of the tech and telecom industries. Two weeks later, the bill was largely restored by another Assembly committee.

In its current form, the measure in its current form faces significant opposition from powerful companies and industry groups, and it’s not clear whether Democrats can muster the 41 Assembly and 21 Senate votes needed to pass it as-is.

Also unclear: Whether the industry groups that engineered the bill’s first surprise committee gutting can reinstate amendments scaling it back in the notoriously perilous Assembly Appropriations Committee, which will decide what bills advance to the Assembly floor — and has nearly carte blanche to amend those bills — at the end of next week.

4. Police shootings (AB 931, SB 1421, AB 748)

When police shootings of unarmed black men or women occur in California, debate at the Capitol swiftly centers on two areas: the state’s rules governing when officers can use deadly force, and its major restrictions against making law enforcement records public.

Efforts at changing both have failed in the past. But backers are trying again following the Sacramento police shooting of Stephon Clark this past March.

One bill would largely restrict police from using deadly force except in scenarios where necessary to protect human life. Two others address police transparency, by ending mandated confidentiality for personnel records in use-of-force cases and requiring that video and audio recordings be released in “critical incidents” such as police shootings.

All three face strong opposition from law enforcement groups, which means they could struggle to pass the Assembly. Any that do pass the Legislature will face a potential veto from Brown, who has shown sympathy to law enforcement groups on these issues in years past.

5. #MeToo (SB 820, AB 3080, SB 1038)

Now that the Senate and Assembly have joined together to create a single, unified process to investigate sexual harassment claims under their own roofs, the Legislature will next turn its attention toward two bills that seek to address Me Too issues both inside the Capitol and out.

One would ban the use of nondisclosure agreements in sexual harassment, assault and discrimination cases. Another would prohibit employers from requiring workers to participate in private arbitration to settle disputes such as sexual harassment claims, rather than going to trial. And a third would make harassers personally liable for retaliating against anyone who filed a claim against them.

While the Me Too movement (and its “We Said Enough” spinoff at the Capitol) have propelled major changes to laws and society at large, the arbitration bill’s passage is far from a sure bet: The California Chamber of Commerce has placed the measure on its “job killer” list, which holds great sway with moderate Democrats — and often with the governor, as well.

]]>

Civil Rights Groups Call for Reforms on Use of Algorithms to Determine Bail Risk

Thu, 02 Aug 2018 08:35:52 +0000

A big coalition of civil rights groups against most pretrial incarceration — and the money bail system that it revolves around — are calling for jurisdictions across the country to drastically change how they use risk assessment algorithms in determining which people to lock up.

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 outlined their concerns July 30 as more state and local governments lean on the technology to determine pretrial flight and criminal recidivism risks.

The hope is that systematic changes will remove the race, gender and socio-economic biases from the pretrial hearings when bail is set, and ultimately lead to reductions in pretrial detention, jail overcrowding and costs.

The civil rights groups warn the technology is only as good as the data that is entered, and that creates a problem. Since a high number of arrests involve people of color, the data that is inputted has the increased potential to be tainted with biases, said Vanita Gupta, president and CEO of The Leadership Conference on Civil and Human Rights, during a press conference call. For example, in 2005, African-Americans comprised 14 percent of drug users, but 33.9 percent were arrested for a drug offense, according to a report from the American Bar Association.

As a result, the groups argue, a disproportionate number of minority individuals could be forced to pay unreasonable bail amounts.

“Someone who is accused of a crime should not be locked up just because they cannot afford to pay bail,” said Monique Dixon, deputy policy director of the NAACP Legal Defense and Educational Fund, during the coalition’s press conference.

In absence of an outright ban, the 115 organizations suggest these algorithms need to be retooled and held to strict use policies. They include:

Develop risk assessment algorithm tools that reduce racial disparities in the justice system.
Pretrial assessment tools should never recommend detention. If release is not recommended, it should recommend a pretrial release hearing, while adhering to safeguards.
Detention ahead of a trial and conditions of supervision must also be avoided, except through an “individualized, adversarial hearing.”
Tools need transparency and independent validation, and should be open to challenge by the defendant’s legal counsel.
The tool should clearly communicate the likelihood of success, not failure, upon release.
Tools should be developed with community input, which is revalidated by data scientists.

Currently, some risk assessment tool providers do not allow access to proprietary software for inspection, while others, such as nonprofit Laura and John Arnold Foundation’s (LJAF) Public Safety Assessment, allow it.

The Arnold Foundation disagrees with some of the coalition’s characterizations.

“(The) description of risk assessments as tools that ‘can defer the responsibility of determining who to detain pretrial and who to release’ misconstrues the role of risk assessments,” according to a statement from the foundation. “Risk assessments, such as the Public Safety Assessment (PSA) developed by LJAF, do not make pretrial release decisions or replace a judge’s discretion. They provide judges and other court officers with information they can choose to consider — or not — when making release decisions.”

The foundation noted it believes early research of the technology shows it can help reduce pretrial detention, address racial disparities and increase public safety.

DEMAND FOR RISK ASSESSMENT ALGORITHMS

COMPAS, a risk assessment tool from the company Equivant which was introduced in 1998, currently operates in 35 states. And LJAF’s PSA, launched in 2013, is currently used in 18 states, including a statewide presence in Kentucky, Arizona and New Jersey.

“In 2015, we received approximately 100 inquiries to learn more about the PSA. In 2016, we received approximately 200 inquiries. In 2017, we received approximately 250 inquiries,” David Hebert, LJAF spokesman said. “The most common issues are questions of research, readiness and implementation, which we have addressed in our new website resources.”

In California, San Francisco, Santa Cruz County and Tulare County have adopted PSA. And the Golden State also currently has Senate Bill 10 working its way through the Legislature, which calls for allowing local governments to use risk assessment tools when setting bail. The bill is in the negotiations stage, so it has yet to be seen if it will ultimately include the use of algorithms.

The bill, which is currently in the Assembly Appropriations Committee, states in its most recent version that the tool is required to be “equally accurate across all racial groups, ethnic groups and genders. The validation study shall include testing for predictive bias and disparate results by race, ethnicity and gender. The tool shall be adjusted to ensure accuracy and to minimize disparate results.”

The deadline for passing the bill in the Appropriations Committee is Aug. 17. Three of the co-sponsors of SB 10 — the California ACLU, the Ella Baker Center for Human Rights, and Silicon Valley De-Bug — were also among the coalition of 115 that signed the statement.

“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.”

Meanwhile, the 115 groups in the coalition plan to disseminate their statement paper among their members, and share it with prosecutors and decision-makers, Scott Roberts, senior campaign director for Color of Change, said in the press conference. “We will work with our grassroot partners and build out our teams,” he said.

View original article

]]>

As Federal Bail Reform Stalls, States and Cities Act

Thu, 26 Jul 2018 21:55:56 +0000

Senator Bernie Sanders (I-VT) has introduced legislation that would end money bail on the federal level and incentivize states to do the same.

The No Money Bail Act would prohibit the use of cash bail in federal criminal cases, provide grants to states that implement alternate pretrial practices, and withhold grant funding from states that continue to utilize cash bail.

“It has always been clear that we have separate criminal justice systems in this country for the poor and for the rich,” reads Sanders’s summary of the bill. “A wealthy person charged with a serious crime may get an ankle monitor and told not to leave the country; a poor person charged with a misdemeanor may sit in a jail cell.”

“And this disproportionately affects minorities—fifty percent of all pretrial detainees are Black or Latinx.”

The No Money Bail Act is not the first push within Congress to tackle pretrial practices. Previous efforts, such as the measures introduced by Representative Ted Lieu (D-CA) in 2016 and 2017 and the Pretrial Integrity and Safety Actsponsored by Senators Kamala Harris (D-CA) and Rand Paul (R-KY) last year, have stalled, making it unlikely that Sanders’s bill will receive the necessary traction to become law.

Even if Congress fails to act, bail reform is slowly gaining ground in cities and states around the U.S., partly through the work of advocates like Robin Steinberg.

Last November, Steinberg launched The Bail Project, a five-year, $52 million plan to bail out 160,000 people in more than 40 locations, starting with New York City.

Steinberg got the idea to start a bail fund while working as a public defender, she told the Christian Science Monitor. As an attorney with the Bronx Defenders, she saw every day how cash bail hampered clients who couldn’t afford to pay to get out of detention.

Bail is meant to serve as an insurance policy for courts: defendants either await disposition of their cases behind bars, ensuring that they will show up, or post bail and (presumably) return to retrieve the money they posted.

Reformers claim that the practice is discriminatory, keeping poor defendants who are often charged with low-level crimes behind bars while their well-heeled counterparts go free. In 2007, Steinberg launched the Bronx Freedom Fund, a revolving nonprofit fund for poor people being held in jail before trial.

By bailing clients out for $768 on average, Steinberg enabled them to go home to their jobs and families and fight their cases free. Once clients’ cases have been heard, the bond money returns to the fund, with each dollar circulating more than twice a year.

Steinberg found that freedom made all the difference: more than half of the cases resulted in all charges being dismissed, while others ended in noncustodial sentences. Only two percent of clients were sentenced to jail for the original charges.

Understanding the scale of pretrial incarceration – 450,000 people await trial in local jails on an average night, most of whom are too poor to pay bail – Steinberg knew her work couldn’t stop with the Bronx. She created the Bail Project to bring the initiative to a national scale.

Since its founding, the Bail Project has set up funds in Tulsa, Ok., St. Louis, Detroit, and Louisville, Ky., hiring local “bail disrupters” to track and assist low-income defendants.

The organization was chosen this year as a TED Audacious Project, which pools money from philanthropists for “big bets” on ideas with broad social effect. The Bail Project will receive $24 million over five years, while Steinberg continues to raise money to expand its reach, Anna Verghese, who runs the Audacious Project told the Monitor.

Revolving bail funds such as the Bail Project have decarcerated hundreds of thousands of individuals, but they do not address the underlying issue: federal, state, and county policies putting a price on a person’s freedom while he or she remains innocent in the eyes of the law.

Among major jurisdictions that have made changes, New Jersey’s Criminal Justice Reform Act largely eliminated cash bail within the state starting in January 2017; Washington, D.C., has long relied upon risk assessment tools to determine who is detained pretrial; District attorneys in Brooklyn and Manhattan in January ordered prosecutors not to request bail in most misdemeanor cases; and Philadelphia District Attorney Larry Krasner put an end to cash bail requirements for low-level offenses in February.

View original article

]]>