The historic bail reform legislation passed in California last year, described in a blog post here in August 2018, is being challenged by the bail bond industry. As described by the LA Times, a national coalition of bail agency groups has collected enough signatures to put a measure on the ballot in 2020 that would overturn the reform legislation and restore the money bail system.
Bail bonds are a $2-billion national industry, and there are 3,200 bail agents registered in California.
Pending the referendum, bail reform based on the new law – SB 10 – continues. At least 11 counties are employing roughly 40 different pilot pretrial programs to reduce the number of people cycling in and out of jail, and as many as 49 California counties are using risk assessment tools, or tech analyses that help courts determine which defendants are fit for release and which pose a risk to public safety or of not coming back to court. California Chief Justice Tani Cantil-Sakauye, who helped craft the state’s bail law, has assembled a working group to evaluate pretrial programs and make recommendations on next steps now that the law is on hold, and Gov. Gavin Newsom earmarked $75 million in his budget proposal last week for counties over the next two years to implement and evaluate pretrial efforts in up to 10 courts.
“Too Tough on Crime? The Impact of Prosecutor Politics on Incarceration” is a new study by Ashan Arora, a Research Director at the University of Chicago Crime and Education Labs. The study is statistically sophisticated (sample: “Estimates of the effect of DA identity are obtained by using local linear functions within a narrow bandwidth of close DA elections. I estimate standard RD specifications of the form Yi = + Di + f(Vi) + ui (1) where Yi is the outcome variable, e.g. the number of sentences, Vi is the forcing variable, the Republican vote share in the DA election, and Di is an indicator variable taking the value of 1 if the county elects a Republican DA and 0 if the county elects a emocratic/Independent DA.’
“This paper explores the impact of chief prosecutor political affiliation on sentencing outcomes in the state criminal justice system. Linking just under 600,000 convicted defendants to their elected District Attorneys, I use quasi-experimental variation generated by close elections to show that Republican DAs do not affect the number of individuals sentenced to prison at the county level, but sentence defendants to longer prison terms compared to their Democratic and Independent counterparts. This translates into a persistent increase in incarceration well after DAs’ time in office. This increase in sentence length does not lead to overall crime deterrence, as arrest rates remain unchanged for a broad range of offense categories. Further, this increase in sentence length dissipates in the period following Blakely v. Washington (2004), consistent with judges in state courts gaining more discretion and limiting prosecutors’ ability to affect eventual sentencing outcomes.”
The LA Times reports on the slow implementation of AB 1810 in San Diego County, in part due to resistance from prosecutors. The mental health diversion law, AB 1810, which was signed by Gov. Jerry Brown last June 27, is intended to steer people with mental health conditions into treatment and away from jail or prison. It gives judges discretion to order defendants into a pretrial diversion program for treatment instead of prosecution. If the person’s mental health treatment is ultimately deemed successful — the diversion can last up to two years — then all charges will be dropped. If at any time the judge determines the treatment isn’t working, the criminal case can start again.
In San Diego, only 2 defendants out of 19 – in cases ranging from residential burglary to vandalism – have been granted diversion. San Diego prosecutors have opposed pretrial mental health diversion in every case, contending the law is unconstitutional on a variety of grounds, including that it is too vague and violates victims’ constitutional rights. In court papers in each case, the prosecutors call the law “a dangerous change to the manner in which criminals with mental health diagnoses” are treated in the criminal justice system. And they also argue that defendants may have a qualifying mental disorder but lack a specific plan for treatment — which should disqualify them from diversion.
Nevada is one of 12 states that restrict voting rights even after a person has served his or her prison sentence and is no longer on probation or parole. Based on the most recent estimates Nevada’s law disenfranchises over 89,000 people: 4% of the entire state-wide voting-age population but 11.76% of the adult black voting-age population. More than half of disenfranchised African Americans are post-sentence, meaning they can petition a court to have their rights restored. Nevada also has a relatively complicated system for restoration of voting rights for people with criminal records that depends in part on the type of record – see the description at the end of this blog. There is a great new project and resource for determining if someone is eligible to have their franchise rights restored at Restore Your Vote, a project of the Campaign Legal Center. On the site you can download a Toolkit that walks people through the eligibility issues and the rights restoration process.
Here is the actual description of eligibility rules from the website of the Clark County Registrar:
IF you were convicted in Nevada on or after July 1, 2003 of
||A category A or B felony that resulted in substantial bodily harm to the victim, or
||Two or more felonies, unless the convictions arose out of the same act.
You may petition the court of competent jurisdiction for an order granting the restoration of your civil rights.
IF you were convicted in Nevada of a felony other than a category A or B felony as described above, and have been:
||Honorably discharged from probation, or
||Honorably discharged from parole, or
||Released from prison.
You have been restored the following civil rights:
||The right to vote; and
||The right to serve as a juror in a civil action.
||Four years after the date of honorable discharge from parole or probation, pardon, or release from prison, the right to hold office.
||Six years after the date of honorable discharge from parole or probation, pardon, or release from prison, the right to serve as a juror in a criminal action.
IF you received an unconditional pardon
You are restored all civil rights and are relieved of all disabilities incurred upon conviction.
IF you were convicted of a felony in a federal court or convicted in another state
Call the Clark County Election Department at (702) 455-0075 or (702) 455-8683 for direction.
IF you were federally convicted in the US District Court of Nevada
AND the Election Department advises you must provide:
||An Order Terminating Probation or
||A signed letter from the District Court where you were supervised
AND you do not have that documentation
Call the main telephone of the U.S. District Probation and Parole Department at (702) 527-7300.
Governor Jerry Brown today signed into law SB 10, the groundbreaking bail reform legislation that establishes a new system for determining a defendant’s custody status while they await trial based on an assessment of risk to public safety and probability of missing a court date rather than their ability to pay cash bail.
“Today, California reforms its bail system so that rich and poor alike are treated fairly,” said Governor Brown.
Governor Brown signs SB 10. Left to right: Assembly Speaker Rendon, Senate President pro Tempore Atkins, Governor Brown (seated), Senator Hertzberg, Chief Justice Cantil-Sakauye and Assemblymember Bonta.
This action delivers on the commitment made last August by Governor Brown, California Chief Justice Tani Cantil-Sakauye and the bill’s authors – Senator Robert Hertzberg (D-Los Angeles) and Assemblymember Rob Bonta (D-Alameda) – to work together on long-needed reforms in the second year of the two-year legislative session.
“This is a transformative day for our justice system. Our old system of money bail was outdated, unsafe, and unfair. It took a three-branch solution with Governor Brown, the Legislature led by Senator Hertzberg and Assemblymember Bonta, and the Judicial Council’s Administrative Director Martin Hoshino working with judges in my Pretrial Detention Reform Work Group to bring about a fair and just solution for all Californians,” said Chief Justice Cantil-Sakauye.
The new law will take effect on October 1, 2019.
Like typewriters, carbon paper, and other relics of the analog age, the Sixth Amendment right to trivial by jury has become a historical curiosity. According to a recent study published by the National Association of Criminal Defense Lawyers, “The Trial Penalty: The Sixth Amendment Right To Trial on the Verge of Extinction and How To Save It“, over the last fifty years, trial by jury has declined at an ever-increasing rate to the point that they now occur in less than 3% of state and federal criminal cases:
“Trial by jury has been replaced by a “system of guilty pleas, which diminishes, to the point of obscurity, the role that the Framers envisioned for jury trials as the primary protection for individual liberties and the principal mechanism for public participation in the criminal justice system.”
The reason for this fundamental change in the criminal justice system is straightforward: individuals who choose to exercise their Sixth Amendment right to trial face exponentially higher sentences if they invoke the right to trial and lose. Faced with this choice, individuals almost uniformly surrender the right to trial rather than insist on proof beyond a reasonable doubt. Defense lawyers spend most of their time negotiating guilty pleas rather than ensuring that police and the government respect the boundaries of the law including the proof beyond a reasonable doubt standard, and judges dedicate their time to administering plea allocutions rather than evaluating the constitutional and legal aspects of the government’s case and police conduct. Equally important, the public rarely exercises the oversight function envisioned by the Framers and inherent in jury service.
Perhaps the most troubling effect of this trend is evidenced by “exoneration” research. In a study of 354 individuals exonerated by DNA analysis, 11% had pled guilty to crimes they did not commit, and the National Registry of Exonerations has identified 359 exonerees who pled guilty. Simply put, the extraordinary pressure defendants face to plead guilty can even cause innocent people to plead guilty to crimes they know they did not commit.
And in Los Angeles, the ACLU has partnered with LARRP, the Los Angeles Regional Reentry Partnership, on an “Unlock the Vote” campaign to reduce barriers to registration and voting for justice-involved and justice-impacted folks in Los Angeles County as well as Orange County. The project volunteers go inside the LA and Orange County jails to to educate and register eligible voters, both the prisoners and the family and friends who are visiting, and reach out through reentry fairs and other community events to educate and register people who are returning citizens or otherwise criminal justice system-impacted. If you are an LA County resident and would like to get involved, here is the information to volunteer.
In Illinois, the Governor has on his desk and is expected to sign the recently passed HB 4469, which requires every jail in the state to provide voter education and make in-person or absentee voting available to all eligible incarcerated voters. Currently only eight counties in the state have any voting process for people in pretrial detention. “There is confusion around how election code actually applies to the jail,” says Jen Dean, who runs Cook County Jail Votes, the group that helps facilitate registration and voting in the largest jail in the country. “[This bill] creates a system of uniformity across the state to make sure there are systems in place so that everybody has access to the ballot.”
Meanwhile, in California, a bill to increase voter education in jails recently cleared the Senate Public Safety Committee. Assembly Bill 3115 would require jails to partner with at least one organization to provide “both written and verbal information about voting rights upon release from jail, providing affidavits of registration to eligible voters, assisting eligible voters with the completion of the affidavits of registration, and assisting eligible voters in returning the completed voter registration cards to the county elections official.”
The Public Policy Institute of California has published a study analyzing crime data since 2010, designed to determine the impact if any of Proposition 47 on crime rates in the State. Prop 47, passed in 2014, reduced the penalties for certain lower-level drug and property offenses and was intended to reserve prison and jail space for higher-level offenders. The debate around the policy centered on the questions of whether these policies would increase or decrease crime and recidivism. According to the PPIC study:
Did Proposition 47 increase crime?
- We find no evidence that violent crime increased as a result of Proposition 47. While California saw an uptick in the violent crime rate from 2014 to 2016, this trend appears to have preceded the reform and is due in large part to unrelated changes in crime reporting after 2014.
- We find some evidence that Proposition 47 affected property crime. Statewide, property crime increased after 2014. While the reform had no apparent impact on burglaries or auto thefts, it may have contributed to a rise in larceny thefts, which increased by roughly 9 percent (about 135 more thefts per 100,000 residents) compared to other states. Crime data show that thefts from motor vehicles account for about three-quarters of this increase.
- Despite recent upticks, California’s crime rates remain comparable to the low rates observed in the 1960s—even with the dramatic reductions in incarceration ushered in by recent criminal justice reforms.
Did Proposition 47 reduce recidivism?
- Recidivism rates decreased due to Proposition 47. Using data from 12 California counties, we find that among individuals released after serving sentences for Proposition 47 offenses, the two-year rearrest rate was 70.8 percent, 1.8 percentage points lower than for similar individuals released before the reform. The two-year reconviction rate for individuals released under Proposition 47 was 46.0 percent, 3.1 percentage points lower than their pre-reform counterparts.
- These overall declines were driven by substantial reductions in recidivism rates for Proposition 47 offenses. Rearrest and reconviction rates for these offenses were 10.3 and 11.3 percentage points lower, respectively, than for similar individuals before the reform. Our findings suggest that the measure reduced both arrests by law enforcement and convictions resulting from prosecutions by district attorneys. However, we are not able to separate the reform’s effects on reoffending from its effects on the practices of criminal justice agencies.