California Chief Justice ignores reality and calls for a No Money Bail System that has proven to weaken accountability, play Yahtzee with the issues of victims rights, only to cost taxpayers millions for a new Mythical Criminal Utopia.
by Jeff Clayton, Executive Director, American Bail Coalition
San Francisco–It should come as no surprise that the California Chief Justice Tani G. Cantil-Sakauye took a bite of the poison apple and recent trend of several Chief Justices calling for an end to the system of any financial conditions of bail in this country – in other words, what everyday Americans understand as their fundamental right to bail as currently protected by the various state constitutions…including that of California.
California’s Chief Justice, like several other state chief justices, decided that rather than keep the oath of swearing to uphold and defend the constitution of the State of California, she would rather instead play politics and advocate for the change of the California State Constitution in order to eliminate the right to bail as we know it by implementing a computerized bail system like the Federal, New Jersey, or New Mexico system.
The ACLU in 1984 opposed the very federal system the Chief Justice wants to implement. In fact, the ACLU also said it was unconstitutional to deny the right to bail, and participated in federal litigation to have the Bail Reform Act of 1984 declared unconstitutional.
In the 1987 case of U.S. v. Salerno, then-Chief Justice Rehnquist broke a 4-4 tie to rule that the State had the power to entirely deny the right to bail. In dissent, Justice Thurgood Marshall stated that preventative detention statutes are “consistent with the usages of tyranny and the excesses of what bitter experience teaches us to call the police state, have long been thought incompatible with the fundamental human rights protected by our Constitution.” This is, as Justice Marshall wrote, “truly a decision which will go forth without authority, and come back without respect.” This certainly came to fruition – as the federal government incarcerated 24% of defendants when there was a right to bail, and incarcerate 65% of all defendants today, an increase of 167%.
The irony is that the Chief Justice then quotes Salerno continuously for the proposition that “liberty is the norm,” when in reality, Chief Justice Rehnquist, with whom the California Chief Justice apparently agrees, got it wrong.
Chief Justice Cantil-Sakauye also makes clear something we have been saying all along—the savings from bail reform will not materialize and as much as perhaps $1 billion will have to be spent annually to begin to implement this. The Chief Justice agreed with the legislative cost estimates by saying that we cannot “rely on anticipated savings to cover new and continuing costs.” Meaning, the estimates that the statewide program will cost hundreds of millions of dollars in several different categories is accurate, not to mention the significant costs in attempting to implement the preventative detention portion of the reforms, which in New Jersey have proven to be quite large.
We have to wonder why the Chief Justice and judiciary continue to ignore the warning signs around them. Just this week, Colorado legislators rejected computerized “risk assessments” and leading researchers from NYU made recommendations to stop using “black box” systems opaque to outside scrutiny.
In Utah, the judiciary delayed implementation of the Arnold Foundation “risk assessment tool” amid serious concerns and pressure by the legislature.
Core public agencies, such as those responsible for criminal justice, healthcare, welfare, and education (e.g “high stakes” domains) should no longer use “black box” AI and algorithmic systems. This includes the unreviewed or unvalidated use of pre-trained models, AI systems licensed from third party vendors, and algorithmic processes created in-house. The use of such systems by public agencies raises serious due process concerns, and at a minimum they should be available for public auditing, testing, and review, and subject to accountability standards. – AINOW – NYU
Finally, the Chief Justice has ignored what has happened in the very states she wants to model the new program after. Law enforcement groups and various legislators are calling for the repeal of bail reform in New Jersey. In New Mexico, the Governor, in light of the results of bail reform, is calling for the repeal of the bail reform constitutional amendment and repeal of the court rules that implemented such rules. The no-money bail systems are proving too expensive, and relying on a computer is proving to re-victimize the community and give prosecutors and the police no ability to keep their communities safe, at least according to several police groups in New Jersey.
Instead, we agree with former San Francisco Superior Court Judge Quentin Kopp, who is also a former legislator and attorney practicing for decades, who described this current iteration of bail reform as “the biggest fraud on the criminal justice system” he has seen in his 50 plus years of law practice.
It’s one thing to say we need to make adjustments and re-calibrate the system—it is another to say that the entire system must be thrown out in favor of a costly and unproven alternative that is likely to weaken criminal accountability and work hand in hand with other soft on crime policies.