Senate Bill 10 “Bail Reform” passes the Assembly despite a litany of constitutional issues, mounting concerns over the Bill, and growing bipartisan opposition.
August 20 2018
Sacramento, CA: Senate Bill 10 “Bail Reform” cleared the Assembly (41-27) today despite its flawed public policy. The bill will now have to be concurred by the Senate and then signed by the Governor to become law.
Not so fast…stop the presses.
While we are hopeful that the Senate and Governor will listen to the major opposition to the legislation and stop this monstrosity from becoming law, the reality is that this legislation is so far from constitutional that we have absolutely zero doubt that the legislation will be overturned by various state and federal courts when challenged.
Lawmakers on both sides debated the bill. While supporters of the bill were lackluster at best, many citing ongoing “concerns” for the new amendments the authors of the bill sprung on their colleagues Friday, the opposition to the bill was much more robust.
Assemblyman Muratsuchi, who voted for the bill, had this to say:
“This is a crappy bill.”
“I feel like it’s an insult to every single one of us as legislators that this language is being sprung on on us at the last minute.
Members of the Assembly who opposed the bill held nothing back:
“You don’t force something bad in the effort to do something good. This bill is garbage and you all know it.” – Assemblyman Devin Mathis
“I’m not even sure this bill is constitutional.” – Assemblyman Jordan Cunningham
“despicable…victims are real!” – Assemblyman Tom Lackey in referencing the fast track method of SB-10
Assemblyman Harper, in opposing Senate Bill 10, warned of expanding failures to appear by eliminating bail from the system, citing Sacramento County’s 51,598 open warrants – with only 248 of those bail related. The balance of those warrants the result of free release on recognizance bonds.
Driving home the absurdity of Senate Bill 10, even one of the most respected law professors in the nation, Erwin Chemerinksy, dean and professor of law at UC Berkeley School of Law, questions the constitutionality of Senate Bill 10.
The key problem is that the current version of SB 10 has no criteria for how risk is to be determined. The bill leaves this to each locality and ultimately gives judges total discretion to decide whether to release an individual and on what conditions. SB 10 also provides a process for prosecutors to file for “preventive detention,” blocking the defendant’s release pending a trial.
Allowing pretrial detention without any criteria creates a serious risk that more, not fewer, people will be detained. Experience shows that judges often will over-predict dangerousness. If a judge releases a person who then commits a serious crime, the judge will be subjected to great criticism and perhaps even recall or defeat at the polls. But keeping a person in custody never risks such consequences for a judge.
In comparing Senate Bill 10 to recent changes in the New Jersey and New Mexico bail system, there is one key element forgotten. New Jersey and New Mexico changed their constitutions to allow for preventative detention because they knew if they didn’t, the law would be declared unconstitutional because of the constitutional right to bail. The California legislature ignored that key fact, which is a fatal flaw to Senate Bill 10 that will be exposed when we link arms with the various civil rights groups to get the entirety of the law overturned.
Senate Bill 10 has a long road ahead…and the grandstanding of those that championed it are sure to be short lived.
Californians have a “right to bail” and that’s something no Assembly vote can change.