Q&A: Professor David Ball: Behind the Scenes on SB 10 and The Future of Eliminating Money Bail
By: Dustin Weber
Professor W. David Ball focuses mostly in the criminal justice field, publishing and teaching in the areas of criminal law, criminal procedure, sentencing and corrections. He is currently Co-Chair of the Corrections Committee of the American Bar Association’s Criminal Justice Section. Additionally, he served as Chair of the Research Committee for the Bail and Pretrial Working Group.
What is SB 10?
Professor Ball:
SB 10 does something to reform bail in CA or pretrial in CA but it’s not as comprehensive as, maybe, I would like.
So, what SB 10 does is eliminates money bail. I mean it’s on hold, but the legislation eliminates money bail and then there are pretrial risk assessments that are used –– a validated risk assessment instrument, which was similar to the way it was developed but lacking certain safeguards we really wanted.
So, the general idea is that it would replace cash bail with something else, some form of risk assessment and you would have pretrial detention.
What’s the History of SB10?
So, the history, at least my involvement with the history of this is that when we started talking about what’s the deal with replacing cash bail with something else, I think a lot of us realized that there was some scope for pretrial detention. Even though I am not a fan of the Salerno decision and I think you should be able to do that in only extremely limited circumstances.
There are times, nevertheless, when I don’t think people should be able to bail out. Namely, with some form of domestic violence. Now, maybe the problem is further upstream and that we shouldn’t have misdemeanor domestic violence or some other way of ensuring that when people are in a sort of hot phase of domestic violence where if they get released, they are going to escalate, that they shouldn’t be allowed to go. So, you know, this could be a problem with domestic violence that then infected the rest of the bail process when we should have just directed it head on by saying let’s do a better of job of regulating and mitigating the harms of domestic violence.
But, be that as it may, there were at least some circumstances where we thought, yea you need to be able to have some form of pretrial detention. Having said that, those were always seen to be extremely limited and the people with whom I was in conversation about that said, yea if you do have pretrial detention it needs to be extremely limited and the overwhelming majority of people need to be released.
It can’t just be a default where just in case someone does something bad you keep them in, that would be worse. So, in the context of the entire reform pretrial detention was, actually detaining people was seen to be a small piece that was going to be small because of some other things we wanted to put in the bill.
Namely, that you get the full complement of, you know, you get a lawyer, you get confrontation rights, the prosecution has to bear the burden to prove that you’re dangerous, there’s all sorts of other rationing that goes on there. It wasn’t just business as usual and you get to do pretrial detention.
So, maybe that was a mistake to start, with that being on the table rather than to hold off on that and say alright, well, we’ll get behind it if there’s these other concessions that get made. But, live and learn.
I think one of the other problems that I’ve talked to people about in other states was our goal was to get rid of cash bail and we did that, but maybe our goal should have been stated a little differently because that’s almost all we got. So, I think there is something to be said for getting rid of cash bail, but if we had said we want to reduce pretrial populations then that framing may have worked a bit better and that’s the criticism that I’ve seen as I’ve talked to other folks around the country.
They’ve said, yeah California is a cautionary tale because you framed it the wrong way and you got what you said you wanted, which was the elimination of cash bail, and it may have replaced it with something that’s at least not better, and in some people’s minds might be worse.
It’s the Judicial Council that’s going to be in charge of setting forth these regulations. So, the judges are likely to give judge’s power.
So, it’s going to be some weird amalgamation of you get to use these actuarial tools, which are at least supposed to contextualize judicial decisions, if not guide them by saying, yea the chances are this person is not going to be very dangerous so you should let them out.
But it allows that plus judicial override. So, if I agree with the risk assessment tool, I’m going to let the guy out, or I’m going to keep the guy in and if I disagree with it, I’m going to do what I was going to do, anyway, because this is exceptional and I have experience, which is not the way it works.
What was SB 10 supposed to do?
The way I had envisioned it, and I was the Chair of the Research Committee, so I am not going to speak for everybody but I am going to tell you what I thought we should have done is to use risk assessment tools to say, great, you get out immediately, because one of the things that people liked about money bail is that it didn’t take that much time for them to get out.
And you know if there’s a long process before you get out then that’s actually a net loss for most people because they actually want to get on with their lives. They need to go back to work or they’re going to get fired, you know, they need somebody to take care of their kids, whatever it might be, and so using risk assessment tools to be like, great, if you score under x, you’re out with no money paid, that’s a win.
Then, the question is if you don’t then, can you use the risk assessment tool for anything? The answer is no. If you don’t get out immediately, or get out automatically, then you go through this full process where the prosecution has to do something to prove to keep you in and then you get a full complement of criminal procedural protections, and the judge has to make a finding, in writing, you know the judge cannot just check a box. That’s the bottom line with that.
What happened at the 11th hour is the judiciary said, hey, we want to weigh in on this and what they said is we would like judges to be in charge of this and judges can decide what actuarial tools they use and judges can take all the “thanks for all the discretion you’re giving us to detain people pretrial” with none of the safeguards in it and that’s why most of the people who were driving the SB 10 reforms abandoned ship.
Now, if you ask me, is it a step in the right direction? I mean, yes, it’s better than nothing because if we get rid of money bail then this industry that is making tons and tons and tons of money will be gone.
So, bail bonds do nothing. And they are basically like, they are almost worse than payday lenders in my view. I mean they are just parasites. So, I have zero sympathy for them. It was a good run while it lasted and if we get rid of them then maybe we can actually start to have real pretrial reform. I think we probably could have gotten the reform that we wanted without the Judicial Council coming in and that would have been better than what we have.
So, with the referendum coming up, what’s the best path forward? What do we do?
You basically act as good law students every time the bail bond company says something. Everything they say, there is no justification for the money bail system we have. It’s just us and the Philippines that have it. You know even if you believe in money bail, just understand that commercial surety bail doesn’t do anything.
So, if you are trying to bail out, you have to provide the cash. The bail bond company, if you buy a bond from them, you pay them immediately. They just deposit a promissory note with the court. They don’t pay any cash.
Also, if you pay 10 percent of the bail amount to get out of jail like then you owe the 10-grand. You owe the whole 10-grand. That 1000 dollars isn’t a deposit. It’s not refundable. It’s just what you pay to get out and they bank that whether you show up or not. If you still owe the 10-grand, you owe the 10-grand to the court.
It’s ridiculous. People do not understand how the 1000 dollars you’re paying is just lining the pockets of the bail bond company. They have zero exposure personally because they have reinsurance, anyway. But they have zero exposure. It’s a great, great business for them but it serves no public safety benefit and if somebody gets arrested while they are out on bond, you don’t forfeit the bond. And then they’re guaranteed you’re going to show up for court. Where is the public safety in that? None of their claims hold up. Not a single one.
So, anyway, that’s what you should do. You should talk back to whatever they’re saying and investigate it. It’s all crepe paper in the rain. It has zero . . . it does not hold together at all.
So, politically, is defeating the referendum the best approach? Then, amending it in the legislature?
Oh yes, absolutely. 100%. Don’t vote for it! Even if you have conservative friends who hate criminals, or whatever, who don’t want to be soft on crime, this is the biggest giveaway to an undeserving industry there is. There isn’t a public safety reason to do it.
There are obvious reasons not to support it because people who stay in jail because they are poor are not necessarily public safety risks and you know rich people who are public safety risks can get out. So, unless you think rich people are safer than poor people, cash bail is the dumbest thing in the world, and I don’t think there’s any evidence to suggest that rich people are safer than poor people, but you know, what do I know?
(Editor's Note: This article was originally published in the December 2019 [Volume 50, Issue 2] version of The Advocate.)