California Bail Reform: Where Are We Now?
May 9, 2022 by Hanna McCrum
It’s not new to say that bail systems, and other monetary conditions to release, have functionally discriminated based on wealth. An overwhelming percentage of individuals who are detained pre-trial, are detained simply because they cannot afford bail. This has shown to be true even for relatively modest amounts of bail. Many courts do not, or are not required, to conduct any sort of inquiry into an arrestee’s ability to pay.
When Governor Jerry Brown of California signed Senate Bill 10 (S.B. 10),  which sought to end cash bail and other monetary conditions of pretrial release, it seemed that meaningful criminal justice reform was on the way in the most populous state. Then-Lieutenant Governor, Gavin Newson lauded Governor Brown’s action saying, “[a] person’s checking account balance should never determine how they are treated under the law…Cash bail criminalizes poverty, and with Gov. Brown’s signature today, California has opened the door to pursue and perfect a just pretrial system.” “California Is the First State to Scrap Cash Bail,” read one triumphant headline. Not so fast.
Criminal justice reformers had begun sounding alarms shortly before the signing of S.B. 10. In filing for a referendum, critics were able to prevent the S.B. 10 from going into effect as intended in October 2019. Interestingly, this was a cause both bail bonds companies, and criminal justice reformers could get behind.
Critics felt S.B. 10 as written left some critical gaps. Eliminating the use of a bail schedule, S.B. 10 provided that individuals would be released based on their level of risk which is calculated via a “validated risk assessment” tool. However, determining how to assess risk was left up to “Pretrial Services” to be established, pursuant to this bill, by the court and the Judicial Council. S.B. 10 did not hold much more guidance than that. Reformers were concerned that simply more people, and particularly people of color, would simply be considered “high risk” and therefore detained indefinitely pre-trial. Moreover, critics were concerned that the Judicial counsel or authorized local agencies would favor algorithms to assess defendant risk levels.
The use of artificial intelligence in criminal justice has become more and more widespread. For example, the use of big data and A.I. is common for predictive policing, identifying suspects via facial recognition software, and, pertinent to our discussion here, for assessing future dangerousness or likelihood of future criminal misconduct. The algorithms use data about the defendant and calculate a risk score. The algorithms use a multitude of data points including neighborhood, race, age, previous convictions, employment, family structure, and other personal characteristics. However, when we consider how impoverished communities, and communities of color tend to be overpoliced, we see how these algorithms are fed by biased data. In fact, studies have shown that these algorithms can, and often do, lead to disparate racial outcomes.
These algorithms as pretrial risk assessment was made front and center in the campaign to repeal S.B. 10. Proposition 25, called the “Replace Cash Bail with Risk Assessments Referendum (2020)”, was put to the California voters in 2020. Proponents of algorithms tout their efficiency, and neutrality. Reformers worried that this bill merely traded discrimination based on poverty, for racial discrimination. California voters voted ‘no’ on Proposition 25 nullifying S.B. 10.
So where does that leave California now? Democratic Sen. Bob Hertzberg, the original architect of S.B. 10, is still adamant for reform and eliminating cash bail. But for now, the bill he introduced to reform S.B. 10, to make it palatable to the public, has stalled.
In March 2021, the California Supreme Court held in In Re Humphrey that detaining someone pretrial simply because they cannot afford bail violates the Due Process and Equal Protection Clauses. While not ending cash bail, the Court did hold that if, after considering the myriad of other options available to the Court to ensure public safety and the defendant’s appearance at court, cash bail is found to be the only option, an inquiry must be made into the defendant’s ability to pay.
Empirically isolating and evaluating the impact of Humphrey in California is challenging. First, the decision is relatively recent, making it difficult to see any changes in California’s pre-trial detention population. Second, coronavirus led to an overall increase in pre-trial detention rates. Third, the recent rise in violent crime in the county may make it difficult to value the effect of Humphrey in isolation. However, the decision a positive step in the direction toward meaningful bail and pretrial detention reform.
 U.S. Commission on Civil Rights, The Civil Rights Implication of Cash Bail, 1, 44 (Jan. 2022) https://www.usccr.gov/files/2022-01/USCCR-Bail-Reform-Report-01-20-22.pdf.
 S.B. 10, 2018 Leg. Sess. (Cal. 2018) (Enacted, Chapter 244).
 Meaghan Flynn, California abolishes money bail with a landmark law. But some reformers think it creates new problems, Wash. Post. (Aug. 29, 2018), https://www.washingtonpost.com/news/morning-mix/wp/2018/08/29/california-abolishes-money-bail-with-a-landmark-law-but-some-reformers-think-it-creates-new-problems/.
 Thomas Fuller, California Is the First State to Scrap Cash Bail, N.Y. Times (Aug. 28, 2018), https://www.nytimes.com/2018/08/28/us/california-cash-bail.html.
 Taryn A. Merkel & Leily Arzy, California’s Referendum to Eliminate Cash Bail, Explained, Brennan Ctr. (Oct. 2, 2020),
 Cal. Penal Code § 1320.7(k).
 S.B. 10, supra note 4.
 Flynn, supra note 5.
 See Alex Chohlas-Wood, Understanding Risk Assessment Instruments in Criminal Justice, Brookings inst., (June 19, 2020), https://www.brookings.edu/research/understanding-risk-assessment-instruments-in-criminal-justice/. See generally, P’ship on A.I.: Report on Algorithmic Risk Assessment Tools in the U.S. Criminal Justice System (2021).
 Julia Angwin, Jeff Larson, Surya Mattu & Lauren Kirchner, Machine Bias, ProPublica (May 23, 2016), https://www.propublica.org/article/machine-bias-risk-assessments-in-criminal-sentencing (discussing how the algorithm is almost two times more likely to label black defendants as future criminals and more likely to incorrectly label white defendants as low risk); see also Stephen Buranyi, Rise of the racist robots – how AI is learning all our worst impulses, The Guardian (Aug. 8, 2017), https://www.theguardian.com/inequality/2017/aug/08/rise-of-the-racist-robots-how-ai-is-learning-all-our-worst-impulses.
 Off. of Sec. of State Alex Padilla, Statement of vote (2020), 64–65, https://elections.cdn.sos.ca.gov/sov/2020-general/sov/complete-sov.pdf.
 Scott Rodd, Cash Bail Survived The Ballot, But Reformers Say The Battle To End It Isn’t Over, CapRadio (Nov. 12, 2020),
 2020 Vote Statement, supra note 15.
 This bill would require the Judicial Council to amend and adopt new procedures in the statewide bail schedule. Moreover, prior to setting bail, the bill would require an inquiry into nonfinancial conditions, and, if money bail is necessary, an inquiry into the arrestee’s ability to pay. The bill would also prohibit costs relating to the conditions of release (e.g., an ankle monitor) from being imposed on the arrestee.
 482 P.3d 1008 (Cal. 2021).
 Id. at 237.
 Camille Squires, Covid Was Supposed to Cut Jail Time. Not for Those Awaiting Trial, Bloomberg (Apr. 29, 2021),
 See generally Magnus Lofstrom & Brandon Martin, Crime Trends in California, Pub. Pol’y Inst. Cal. (Jan. 2020), https://www.ppic.org/wp-content/uploads/JTF_CrimeTrendsJTF.pdf.