FROM CLANTON TO SACRAMENTO: HOW THE JUSTICE DEPARTMENT WANTS TO END MONEY BAIL IN CALIFORNIA

AB 109 released 50,000 criminals from prison.  Prop. 47 assured tens of thousands of criminals they would not be arrested or if arrested, given very short terms in County jail.  Prop. 57 on the November ballot makes sure that rapists are considered non-violent criminals and most crimes are made into lesser sentences—if passed, it will be surprising if a criminal serves as much as ten years in prison.

Now the Leftists are trying to make sure criminals who are dangerous, vicious and looking for blood never serve more than a few hours in a holding cell after arrest before they are back on the street.  How?  By ending bail.  If I wanted to cause a run on gun shops I would pass Prop. 5 and end the need for bail.  At that point California becomes the Wild West.  Thanks to Jeffrey Clayton for writing this article for the California Political News and Views—the public needs to know how dangerous government is making our streets.

“Change in California can come about by a Justice Department win in the courts or through legislative and constitutional changes in the state.  This issue will be on the agenda of the upcoming session of the California legislature.

Without deciding the merits of the need for change, let’s assume for a moment that all monetary conditions of bail are ended in California.  Would the new system deliver on the promises of a new big-data, techno-utopia?  It would be fanciful world indeed, employing computerized predictive algorithms to decide more fairly and accurately who gets “caged” and who does not, all while protecting the safety of the community and saving money.  Time for a reality check.

A no-money bail system would mean the need for a different way to decide who gets out of jail pending trial, rather than the present system which simply requires having someone post a financial bail bond.  This new system would require two things: (1) an expansion in “preventative detention,” i.e., jailing with no possibility of bail as the only way to detain someone.  Everyone else would be released without any financial conditions of bail or the involvement of bail recovery agents if they should flee; and, (2) the attempt to predict, with scientific accuracy, who is a danger or flight risk in order to decide who is preventatively detained and who is released.”

Prison_crowded

FROM CLANTON TO SACRAMENTO: HOW THE JUSTICE DEPARTMENT WANTS TO END MONEY BAIL IN CALIFORNIA

By: Jeffrey J. Clayton, Executive Director, American Bail Coalition, Exclusive to the California Political news and Views,  10/12/16

There is a national movement to end all monetary conditions of bail, which was started by the Department of Justice in January 2015 when it intervened in a shoplifting bail case that started in a Walmart parking lot.  The theory is monetary bail discriminates against the poor, and thus, lacks a rational basis, in violation of the equal protection clause.  Altogether, 15 cases have been filed across the country, arguing against the constitutionality of bail.  All have been settled except for those in Calhoun (Georgia), Houston, Sacramento and San Francisco.  The two cases in California are against State Attorney General Kamala Harris who is alleged to be presiding over an unconstitutional bail system.  The current system uses a fixed schedule that sets bail based on the criminal charge, combined with a review by a judge some days later.  The Justice Department originally maintained that bail schedules were constitutional, but has subsequently taken the position in a case in Clanton, Alabama that any period of detention to a person who cannot afford bail is unconstitutional.  The outcome of all these cases is still to be determined, but former U.S. Solicitor General Paul Clement has weighed in with his opinion that Calhoun’s bail system is “clearly constitutional.”

Change in California can come about by a Justice Department win in the courts or through legislative and constitutional changes in the state.  This issue will be on the agenda of the upcoming session of the California legislature.

Without deciding the merits of the need for change, let’s assume for a moment that all monetary conditions of bail are ended in California.  Would the new system deliver on the promises of a new big-data, techno-utopia?  It would be fanciful world indeed, employing computerized predictive algorithms to decide more fairly and accurately who gets “caged” and who does not, all while protecting the safety of the community and saving money.  Time for a reality check.

A no-money bail system would mean the need for a different way to decide who gets out of jail pending trial, rather than the present system which simply requires having someone post a financial bail bond.  This new system would require two things: (1) an expansion in “preventative detention,” i.e., jailing with no possibility of bail as the only way to detain someone.  Everyone else would be released without any financial conditions of bail or the involvement of bail recovery agents if they should flee; and, (2) the attempt to predict, with scientific accuracy, who is a danger or flight risk in order to decide who is preventatively detained and who is released.

In a no-bail system, the California Constitution would have to be changed to adopt the current federal or Washington, D.C. pretrial release systems, which are the no-money systems for which the advocates call.  The federal system was created by the Federal Bail Reform Act of 1984.  Under it, preventative detention increased by 267% between 1983 and 2010 (from 23.8% detained with no bail to 64%).  Then-Chief Justice Rehnquist approved the constitutionality of the Federal Bail Reform Act of 1984 in 1987, stating that in our nation, “liberty is the norm.” Today, however, detention is the norm and not the “carefully limited exception.”  Adopting the federal risk-based system would open the system up to the abuses the ACLU cautioned of when it opposed the Act in 1984.

Predicting who is dangerous, and thus who should be detained with no bail, is easier said than done.  One study found a widely-used algorithm had only a 20% success rate in predicting violent crime.  First thought to be race-neutral, the use of predictive algorithms in criminal justice has also been criticized by many as falling short of that criterion, with one study showing that the algorithms actually discriminate against African-American defendants.  Another author also recently called for a national audit of the use of these algorithms in the system due to their discriminatory effects.

Further, there is no conclusive evidence that either the federal or Washington, D.C. systems work any better from a benefit-cost perspective than the current system of judicial discretion to set a monetary bail condition.  The costs of the move to the no-money bail system would also be staggering.  The Washington, D.C. system currently costs $65 million annually; projecting that to California’s population would mean an annual cost of $3.6 billion.

Finally, in order for the system to function properly, it presupposes that judges will have the resources to “meaningful consider” of bail twenty-four hours a day, seven days a week, as the Justice Department would desire.  Of course, covering these enormous costs will be part of the $3.6 billion annual price-tag.

There are critical funding needs in California’s justice system, but spending $3.6 billion annually to end money bail is not a good use of funds in light of other essential needs in the state.  Speedier and more robust bail reviews and other reforms may smooth out some of the issues in California, while preserving resources for far more critical necessities.

 

 

About Stephen Frank

Stephen Frank is the publisher and editor of California Political News and Views. He speaks all over California and appears as a guest on several radio shows each week. He has also served as a guest host on radio talk shows. He is a fulltime political consultant.