The Eighth Amendment to the Constitution of the United States states: “Excessive bail will not be required, or excessive fines imposed, or cruel and unusual punishment inflicted.” Ratified Dec. 15, 1791, that’s reiterated in Article I, Section 12 of the 1872 California Constitution and amended Nov. 8, 1994 to provide that a person shall be released on bail except for capital crimes and certain felony offenses under specified circumstances. The California Constitution declares that excessive bail may not be required, that in fixing the bail amount, the court shall consider the seriousness of the offense charged, defendant’s previous criminal record, the probability of defendant’s appearance at the trial or any hearing of the case, and that a defendant may be released without bail on his or her “own recognizance [OR] in the court’s discretion.” In Article I, Section 28, adopted by California voters on Nov. 5, 1996, our state constitution, reiterating those factors, unmistakably emphasizes: “Public safety shall be the primary consideration” and provides for release of a defendant on his or her own recognizance at court discretion, “subject to the same factors considered in setting bail.” It adds that nobody accused of a serious felony may be released on bail without a court hearing after notice and reasonable opportunity for the prosecution to argue. If a judge grants or denies bail or release on defendant’s own recognizance [“OR”], the reason for such decision must be stated in open court and included in the court’s minutes.
The cause du jour for apparently uninformed “reformers” regarding criminal law across the country is based on a principle that poor defendants without money are unjustifiably held in county jail pending trial simply because they can’t afford bail and are, thus, the objects of unconstitutional discrimination by unequal treatment. They demand change, that new, so-called “tools” will decide if a defendant can be safely released without depositing bail by from insurance bond or other assets, and that “new” so-called “pretrial assessment” will ensure a released defendant won’t endanger the crime victim or other people and will appear faithfully at the trial and every pretrial hearing in the case, thus flying in the face of the California Constitution and voters’ demand that public safety be the primary consideration. Time Magazine last month published a full-page piece by a “real” expert on the law, known professionally as Jay-Z, aka Shawn Carter, described as a “recording artist, entrepreneur, philanthropist.”
New Jersey, New Mexico, Colorado and the District of Columbia have adopted such systems, creating a presumption that any defendant accused of a felony or misdemeanor will be released on “OR,” and that pretrial “public safety assessment scores” from a computer algorithm by a foundation will solve public safety and court appearance fears of prosecutors, law enforcement officers, and citizens. They call it “reform,” which means it must be good for society.
This sham is one of the most dangerous and misleading legislative efforts I’ve seen in more than 50 years as a criminal and civil trial lawyer and 10 years as a California Superior Court judge. A pretrial release system already exists in 46 of 58 California counties. Judges already consider those offices’ recommendations and all factors contained in state Senate Bill 10, which awaits action by the Assembly next year. (A similar bill was defeated in June by the Assembly.)
Judges, not prosecuting attorneys, bureaucrats, or computers, set bail amounts. They know unjustified pretrial incarceration costs taxpayers money. They know about events such as the horrible Twin Peaks homicide in July of a photographer by a felon whom the San Francisco Pretrial Diversion Project recommended for “no-bail” release based upon a Laura and John Arnold Foundation computerized “risk assessment.”
The Arnold Foundation, incidentally, is already defending a federal suit in New Jersey for a murder by an accused released without bail per order of a U.S. District Court judge in Houston who adopted the Arnold Foundation system to require release of qualifying defendants last April. Guess what? Twenty-one percent of the defendants released under that judge’s order have failed to appear for trial as of July 29. The failure to appear rate for defendants released on bail is only 3.8 percent.
SB 10 is unconstitutional and based upon the false premise that judges aren’t as knowledgeable as a computer algorithm, and that the California bail system makes poverty a crime. Poverty isn’t a crime, but committing a heinous act is one.
Almost as insulting to taxpayers are the costs of re-arresting a computer-released defendant. That’s why Nevada’s governor vetoed a bill similar to SB 10 last May. It’s why the Alliance of California Judges and California District Attorneys Association oppose SB 10. It’s why Democratic New Jersey Assemblymember Bob Andrzejczak stated publicly in a July 3 letter to the California Assembly Speaker that New Jersey legislators made a terrible mistake in voting for similar legislation last year, calling the New Jersey law “an absolute disaster.”
SB 10 threatens every reader and would be ruinous to California’s criminal law system and Californians.
Quentin L. Kopp, Esquire is a retired Superior Court judge, ex-State Senator and 15-year San Francisco Board of Supervisors member who lives in Lakeshore Acres.
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