Latest California bail reform effort dies for this year

Photo credit: RICHARD BOUHET/AFP via Getty Images

A parolee’s arrest in a killing after he’d been released without bail helped torpedo the California Legislature’s latest attempt to reform the cash bail system for this year, the bill’s author said Thursday.

Democratic Sen. Bob Hertzberg unsuccessfully tried several variations of a new measure after voters in November defeated a law what would have ended cash bail in favor of risk assessments.

His initial bill cleared the Senate but ran into opposition in the more conservative Assembly ahead of Friday’s legislative deadline, although Democrats control the needed two-thirds majorities in both chambers.

The California District Attorneys Association gained new traction in opposing the measure this week when a parolee was arrested and charged in the slaying of a Sacramento woman found dead along with her two slain dogs inside her burning home.

Troy Davis, 51, was released without bail on suspicion of auto theft in June and did not appear for his arraignment.

"The gruesome murder of the Sacramento woman had several of my colleagues reaching out with concerns," Hertzberg said in a statement to The Associated Press. He said his proposal "actually could have prevented that parolee from being released in the first place" but that he ran out of time to explain that to reluctant lawmakers before Friday’s adjournment deadline.

"We made a lot of progress this year and we’ll be back next year in stronger shape," Hertzberg said.

El Dorado County District Attorney Vern Pierson, the district attorneys association’s president, said lawmakers supporting changes to the bail system are "expressing sympathy toward prisoners instead of prioritizing public safety."

Hertzberg said he will keep working for "a fair, safe and equitable bail system, free of industry greed."

The current bail system, he said, "keeps Californians locked up who pose no threat to the public and who have been convicted of no crime, simply because they cannot pay what the bail industry demands."

Hertzberg recently heavily amended his original bill after it ran into opposition in the Assembly.

It would now set a statewide bail schedule that takes into account suspects’ finances and returns the money if charges are dropped.

It follows the California Supreme Court ruling in April that judges must consider suspects’ ability to pay when they set bail, and Hertzberg said his bill implements the high court’s ruling.

It also follows a statewide judicial order last year that set bail to $0 for many crimes during the early months of the coronavirus pandemic in a bid to reduce the vulnerable populations in county jails.

Hertzberg’s bill originally mimicked that $0 bail order when it cleared the Senate.

His amended bill requires the Judicial Council to set a statewide bail schedule by 2023, replacing schedules that vary across the state’s 58 counties.

The council would have to consider whether non-monetary conditions like electronic monitoring could protect the public and victims while reasonably assuring that suspects would show up for court appearances.

Judges would have to take suspects’ financial condition into account. They would also have to return suspects’ money or property if charges are dropped or the suspect showed up for all court appearances.

Bails bonds companies could keep a 5% surcharge on that money. Hertzberg has said that would be an improvement over a current system he equated to "predatory lending."

Bonding companies and insurers said the return policy would make the bail industry unsustainable. The American Bail Coalition said that as a practical matter, the bill would end California’s bail industry because most suspects could say they couldn’t afford to pay it.

Setting up a promised court fight should the bill become law, the Golden State Bail Agents Association argued that legislators’ latest bail reform effort "is a bad faith attempt to thwart the will of the voters," 55% of whom rejected Proposition 25 in November.

Bail is money or property that can be forfeited if suspects fail to appear for trial. Traditionally, judges set bail based on suspects’ criminal records and pending charges. Critics said that allows wealthy suspects to go home to prepare for trial while lower-income defendants remain jailed, a system they said encouraged some innocents to plead guilty to get out of jail.

The Anti-Recidivism Coalition, a reform group that supports the bill, projects that it currently costs nearly $4.6 million a day to keep about 40,000 offenders housed in county jails.

While the bail bill stalled, lawmakers sent several other criminal justice bills to Gov. Gavin Newsom on Thursday.

The first requires judges to give "great weight" to mitigating circumstances that favor dismissing enhancements that can greatly extend the length of prison sentences, unless doing so would endanger public safety. Democratic Sen. Nancy Skinner said enhancements are much more likely to be imposed on Black suspects. Her bill would enact 1 of 10 recommendations of Newsom’s California Committee on the Revision of the Penal Code.

The second enshrines court rulings that say judges must impose the middle of three possible sentences allowed by law unless there are mitigating or aggravating circumstances. The bill says aggravating circumstances extending a sentence must be admitted by the suspect or found true beyond a reasonable doubt by a judge or jury.

A third decriminalizes jaywalking, a crime that Democratic Assemblyman Phil Ting says is arbitrarily enforced, most often against people of color — sometimes leading to deadly confrontations with police. Fines can reach hundreds of dollars, which he said is too much for a relatively minor infraction. Virginia this year became the first state to decriminalize jaywalking.