The Eighth Amendment to the Constitution states: “Excessive bail will not be required, nor excessive fines imposed, nor cruel and unusual punishment inflicted.” On August 28th, 2018, Governor Jerry Brown of California signed into law the California Money Bail Reform Act, more commonly known as SB10. This legislation eliminates cash bail replacing it with a “risk assessment” of an individual and will go into effect in October of 2019. After a 2 year push, SB10 was approved with largely Democratic support, but faced heavy opposition from many including the bail industry. In addition, original co-sponsors of the bill, including the ACLU of California, changed positions after an eleventh hour change to SB10, stating that the bill granted too much power to the courts, thus creating “racial biases and disparities that permeate our justice system.”
On Lawyer 2 Lawyer, host Craig Williams joins attorney Jeff Clayton, the executive director of the American Bail Coalition and attorney Shima Baradaran Baughman, a professor at the University of Utah’s S.J. Quinney College of Law, for a discussion about bail reform, the recently signed California Money Bail Reform Act (SB10), and the future impact.
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Bail Reform & Controversy & SB10
Jeff Clayton: There’s much more to talking about bail than just bail bondsman and money bail. There’s the entire process of arresting someone, deciding whether to give them a citation, custody pending sentencing, diversion, and all kinds of other things going on that I think are opportunities to explore.
Shima Baradaran Baughman: But what they are trying to do is make these bail decisions more based on evidence, which is an admirable goal, it’s just, what are the inputs you are putting in and are you preventively detaining people and that’s where the problems come.
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Well, the Eighth Amendment to the Constitution states excessive bail will not be required or excessive fines imposed or cruel and unusual punishment inflicted. On August 28 this year, 2018, Governor Jerry Brown of California signed into law the California Money Bail Reform Act, more commonly known or started out as Senate Bill 10.
This legislation eliminates cash bail, replacing it with a risk assessment of an individual and will go into effect in October of 2019. After a two year push SB 10 was approved largely with Democratic support, but it faced heavy opposition from many including, not surprisingly, the bail industry.
In addition, original cosponsors of the Bill, including the ACLU of California, changed positions after an eleventh hour change to SB 10, claimed the Bill granted too much power to the courts, creating racial biases and disparities that permeate our justice system.
So today on Lawyer 2 Lawyer we are going to discuss bail reform, the recently signed California Bail Money Reform Act and its future impact. To do that, we have got a great line up of guests today.
Here to discuss today’s topic is attorney Jeff Clayton. He is the Executive Director of the American Bail Coalition, a trade organization comprised of national bail insurance companies that are responsible for underwriting criminal bail bonds throughout the United States. The organization’s primary focus is to protect the constitutional right to bail by working with local and state policymakers to bring best practices to the system of release from custody pending trial.
You can find out more about Jeff and his organization at americanbailcoalition.com, and in the meantime, welcome to the show Jeff.
Jeff Clayton: Thanks for having me on.
J. Craig Williams: You are welcome.
Our next guest is attorney Shima Baughman, a professor at the University of Utah’s SJ Quinney College of Law. She is a national expert on bail and pretrial prediction and her current scholarship examines criminal justice policy, prosecutors, drugs, search and seizure, international law and terrorism, and race and violent crime.
Her recent book exploring bail is called ‘The Bail Book: A Comprehensive Look at Bail in America’s Criminal Justice System’ and it’s out by Cambridge University Press.
Welcome to the show Shima.
Shima Baradaran Baughman: Hi. Thanks for having me.
J. Craig Williams: Well Jeff, let’s start with you. Maybe you can give us a little bit of a background about SB 10, how it got started, what its original purpose was and what this last minute change did to it.
Jeff Clayton: Absolutely. The original Senate Bill 10 started about two years ago and was intended to increase the number of persons released from California’s jails without having to post a financial condition of bail. In other words, call a bail bondsman or post their own financial assets.
What happened eventually is the legislation was amended with two weeks to go in the session in quick succession and eventually became law. And what the Bill does now is sets up a system of basically low, medium, and high risk and then assigns bail based off an algorithm into those three categories.
We have category number one, you basically go home, which is pretty much the low level misdemeanors for which there is no bail today. Medium risk cases will be mass supervision by state agencies. And then the high risk cases will get what’s called preventive detention. And so that’s sort of the basic architecture of what the new Senate Bill 10 does.
It will also create a system of sort of pre-conviction probation, pretrial services programs throughout the State of California to handle the load of all these offenders.
J. Craig Williams: Shima, how does this change the current bail system in California? How did it operate and how is it working now?
Shima Baradaran Baughman: Sure. I mean the plan is that it’s basically stopping the reliance on money bail in California. So instead of somebody that’s charged with a crime and is arrested, having to go to a bail bondsman to pay money to be released, they can be released, as Jeff said, if they are in one of the categories that allows release. So it would dramatically change the system because California, like most other states, relies primarily on money bail at the moment.
J. Craig Williams: Jeff, what’s the objection to this? I mean why is the bail association upset; obviously you are going to lose customers?
Jeff Clayton: Sure, obviously the industry will be completely wiped off the map. But for me, I fight for the right to bail in addition to the right to use a commercial bail bondsman, because I don’t believe in the system of preventive detention. I don’t think history has proved it has worked, and certainly prior to 1987 nobody thought it was constitutional.
The reason the ACLU and most of the other groups traditionally that would support bail reform on the other side, and there’s 55+ of them that have joined the coalition against it, are against it because we are expanding the power to detain people without bail at all and that’s a dangerous proposition as we are seeing the tripling of pretrial incarceration in the federal system as a result of giving prosecutors and judges these expanded powers.
J. Craig Williams: So this system completely eliminates the need for bail? I mean there is no bail at this point forward from 2019 on?
Jeff Clayton: Right. I mean the system will essentially make a decision about whether you get out or not and that’s it, and when you get out the system will decide whether you are on supervision by the state, an ankle monitor, drug screening and all that sort of thing. And what we are seeing in the New Jersey system upon which this is modeled is the middle is huge, meaning most everybody who gets out is going to get some version of supervision by the state.
J. Craig Williams: Shima, how does this play into the Eighth Amendment?
Shima Baradaran Baughman: Yeah. I mean there are a lot of amendments implicated, but I think preventive detention, it was constitutionally prohibited before the 1980s with US v. Salerno, but even now it should be very limited in its use.
So the only time that people should be detained before trial is when there is no reasonable way to release them safely, and that’s a high bar. I mean the judges have to prove that look, there is no way to release this person in a safe way.
And so what California is essentially doing and why the ACLU and others are having problems with this Bill is that — and I myself have problems with this Bill, because it does allow a large number of people to be detained preventively and not obtain release at all. And so whereas California’s former system was bad for the poor, it was bad for minorities in some ways, the new system is bad for a lot of people because I mean there’s a lot of people that just by nature of what they are charged with cannot obtain release and that’s troubling.
J. Craig Williams: What about the 10-day right to trial, I mean can’t all of this be avoided by the defendants simply invoking their right to trial within 10 days?
Shima Baradaran Baughman: They can. I mean, as you know, criminal trials are kind of like a unicorn nowadays. I mean 95% of cases plea and so very few cases go to trial, and in fact, there is what’s called a trial penalty, when people go to trial they often are punished by prosecutors with larger sentences. So it’s usually not in a defendant’s incentive to go to trial.
J. Craig Williams: So Jeff, let me have you take the other side of this argument, I mean what was the need, why was there a cry for bail reform, how did this whole thing get generated in the first place?
Jeff Clayton: Well, I think most of the arguments in criminal justice reform around poverty are basically just arguments of class warfare that the wealthy guy has it much better than the poor guy in our society, which is what the Eleventh Circuit said in setting this wealth-based discrimination theory that underpins all of this doesn’t fly. But I think that’s really what it is.
For my money, I think my cohort on the show would agree, there’s much more to talking about bail than just bail bondsman and money bail. There’s the entire process of arresting someone, deciding whether to give them a citation, custody pending sentencing, diversion, and all kinds of other things going on that I think are opportunities to explore. And we have seen that due process issues where people in South Texas can’t get in front of a judge to get their felony bail reform when they have an attorney in less than 30 days, stuff like that that’s just egregious abuses.
And so I think it’s a rich area for scholarship and looking at policy changes for that reason.
J. Craig Williams: Let’s talk about that Shima, what are the policies behind this? What are the social policies that we are playing with here?
Shima Baradaran Baughman: Sure. I mean bail I think is really the key to reducing mass incarceration. I mean we have excessively high incarceration rates and if you look at — just looking at pretrial incarceration or detention, it’s gone up 72% since 1990. And why is that, why are we detaining a lot more people pretrial when crime rates have nationally gone down, and it doesn’t really make sense. And so it’s just a lot of bad policies and a lot of cities and counties that are dealing with systems that are antiquated and they are not really using proper metrics to get people out.
What California is trying to do, which is admirable, and a lot of other states have done this in more successful ways I think, and some of us will see there is a lot of let’s wait and see because a lot of these reforms are new and we will see if they increase the effectiveness of this, but what they are trying to do is trying to make these bail decisions more based on evidence, which is an admirable goal, it’s just what are the inputs you are putting in and are you preventively detaining people and that’s where the problems come.
J. Craig Williams: So Jeff, were the people in the private jail system in favor of this no bail system in terms of it increases their incarceration levels?
Jeff Clayton: Well, I don’t think the private prison or any of that industry really had much of input on this. The reality for mass incarceration on the bail question is crimes on bail are generally fairly low across the board, time periods are really short; take misdemeanor cases, 30, 90 days until they plea out. So while I think bail is a main opportunity to look for improvement, I think the rest of the system needs a whole lot more work than bail.
J. Craig Williams: Well Shima, there have been some pretty prominent objections to this, among them Erwin Chemerinsky coming out against it and saying it’s unconstitutional. What’s your thought about whether this is going to survive muster?
Shima Baradaran Baughman: Yeah. I mean the system as declared by one California appeals judge in California was unconstitutional and some of the problems people are having is that when release from trial, which is a basic fundamental right under due process is based on how much money you have and a judge unknowing will set a $200 bail, for instance in a lot of jurisdictions, and a lot of defendants don’t have $200 to even pay to get out.
And so they — if we are discriminating for people that are equally situated with a criminal charge and some people are not able to obtain release just because they don’t have money in their bank account, that’s where the Constitution comes in and says that violates the due process clause, it violates equal protection clause of the Fourteenth Amendment and also the due process clause of the Fourteenth Amendment.
So that’s where a lot of litigation nationally has kind of taken root and there’s a lot of other systems that have said this is unconstitutional, we don’t have this right. And kind of to put it in context, we are the only country besides the Philippines that allows this right to be released before trial, while you are presumed innocent to be based on how much money you have, we are very alone in the industrialized world in this.
J. Craig Williams: Jeff, what’s the bail industry’s response to this? I mean what is it that the bail industry wants to see in terms of the law and how would you change SB 10?
Jeff Clayton: Well, I think the fundamental heart of the Bill is unconstitutional under the California State Constitution. I mean let’s just get down to brass tacks, the two other states that did this had to change their Constitution, because the Constitution says everybody has a right to bail with very limited exceptions. And so to say that we are just going to wholesale deny bail based on the state law is putting the constitutional cart before the horse.
And so we think that’s an inevitability, that the entire scheme is unconstitutional and would not withstand scrutiny, we wouldn’t think, aside from issues of whether the current system is constitutional or not.
And then the second prong is obviously our industry in cooperation with others who are helping have launched a signature drive to put the issue before the California voters and the signatures are due toward the tail end of November and the way things are going it looks like we have a pretty good chance to make that happen, which would essentially put the law on hold for two years and send everybody back to the drawing board.
J. Craig Williams: That brings me to another question, but before we move on to our next segment, we are going to take a quick break and hear a message from our sponsor. We will be right back.
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J. Craig Williams: And welcome back to Lawyer 2 Lawyer, I am Craig Williams and we are joined by attorney Jeff Clayton, the Executive Director of the American Bail Coalition, and attorney Shima Baughman, a professor at University of Utah’s SJ Quinney College of Law.
Well Jeff, before the break we were talking about this bail segment and what two other states had done, New Mexico and New Jersey, having to change their Constitutions. Looks like California may have to do the same thing in order to get this. But you were talking about a proposition to put on the ballot. Do you think that Californians are going to vote against this? What’s the polling showing at this point?
Jeff Clayton: Well, it’s too early for that and you have 90 days from the day the governor signs it, so you have to scramble and you don’t really know what the outcomes were.
I would tell you that one of the reasons that counseled us to go for it was really the support of the 55 civil rights groups who came out against this legislation and they are still railing on this legislation, to say that, yeah, there’s all kinds of solutions to the bail problems in California, many of which we have solutions to which were ignored, but I think this is just a bipartisan bad idea, and I think that’s what encouraged us to go forward. And I think that will be the ultimate undoing of this legislation, it’s not only that it’s unconstitutional, but that people on both sides of the aisle can agree that this is just not the right solution.
J. Craig Williams: And Shima, Jeff is saying that the bail industry thinks it’s going to be eliminated, certainly here in California if this turns out to be the case, but what has been the reaction of states across the country? Are state legislators clamoring to get this enacted or to look and wait and see?
Shima Baradaran Baughman: Yeah. I mean there are a lot of states that have moved towards eliminating money balloting, four other states have eliminated it and others have taken drastic steps, like New Jersey we talked about, towards it.
I think California’s approach is not the best. I think, again, it’s unconstitutional, the preventive detention scheme, I think the risk assessment instrument that they are advocating is too stringent. It will prevent a lot of people from obtaining release. And the goal of bail reform nationally has been to release more people. Like we talked about, these people that are being put in for small offenses, not dangerous people, but just put into jail, end up staying there for months and years and it ends up just clogging our system. It costs a lot of money and this is why states are uniformly visiting their bail policies and trying to change that. But what California maybe didn’t see in this Bill is that what they are going to do is actually detain a lot more people and cost more money.
And so I think it is worth revisiting. I think the initial goal of eliminating money bail is a great one, I think they just need to figure out how to do it in a way that we can release more people safely and it’s done, it’s been done by lots of states. I mean DC has kind of been doing this for over 30 years. They have 80% of their people pretrial released, with 80% not being rearrested and appearing for their court dates. I mean that’s the kind of numbers that we like to see, and when I look at California’s law, it doesn’t seem like that’s what’s going to happen.
J. Craig Williams: How does the risk assessment system work?
Shima Baradaran Baughman: So it’s just that they will put people in categories of low risk, medium risk or high risk and every state has different instruments. There are lots of different risk instruments and they are not all created equal.
So for instance, some of them, if you are a male and you are charged with a violent crime, automatically you are detained. I mean just based on your gender, just based — sometimes based on your age if you are charged with a certain crime, sometimes you are just automatically detained.
If you don’t have employment or if you don’t have a cell phone, those can add numbers to your riskiness. And if you don’t own a home, I mean there’s a lot of things that can discriminate based on race, based on age, based on gender. So there are lots of problems with risk assessments. I mean they are not all good. You have to really have a good risk assessment instrument. They are overall a good thing, but California’s is very aggressive.
J. Craig Williams: Jeff, what’s the industry’s response to this? I mean what proposals does the industry have out there that is an alternative to cash bail in the current system and something that might go part of the way?
Jeff Clayton: Well, I think the bail schedules in California are way too high, I think everybody has agreed with that, part of that’s economics and the way the bail industry is regulated in California, it’s the cheapest place for dollar to get bail anywhere within the United States.
So a $50,000 bail, typically you can put no money down and walk away with obviously the contract that you signed, but those premiums are never collected. So reducing the bail schedules was always one.
And I think two, looking at due process issues, the idea that somebody can sit for two, three, four days without seeing a judge in 2018 is just plain wrong, and I think everybody should be seen within 24 hours if they can’t post bail by a bail schedule. And they should have a right to a risk assessment if they want one. If they want to be assessed and present more information to a judge, that’s fine. And so we were advocating to speed up the process.
There is also stacking of bails and charges in California, which is another area where judges can use that as a tool, if somebody has five charges to then stack all those charges and make the bail five times as high to keep people in jail.
So we had a list of reforms that we wanted to see and to try to bring the system into balance and to take the pressure off of this idea that if you are poor, we are just going to send you to a government program and electronically shackle you, but that’s the answer. And that bail could play a role in any of those cases, where it would be least restrictive for some of these defendants. So that was our plan, but obviously we got rejected.
J. Craig Williams: Well, there have been some horror stories that are out there. I mean you take the famous one of, I think Brian Corbett, who was a bail bondsman that pocketed $2.5 million fees over a year-and-a-half in Northwestern Mississippi, basically on DUIs or the small cases. How does the bail industry respond to that? What would you do in those instances to kind of curb that abuse?
Jeff Clayton: Well, obviously we have supported stiffer regulation in the industry in California. Of course, I always like to point out that the clerk of the Philadelphia Superior Court was on the take for their cash bail system and probably stole a whole heck of a lot more than that. But there’s always bad apples I think in every industry, and as an industry we want to leave those people out.
And right now the California Department of Insurance, we think, does a fairly effective job and we have been working with them to try to get them additional resources to go after some of the bad apples.
J. Craig Williams: Shima, is that the main objection to cash bail, I mean the odd distribution of the benefits to the wealthy and the people that are scamming the system, what have been the objections to it?
Shima Baradaran Baughman: Yeah, the biggest objections to money bail are just that it’s unfair. It’s that people charged with the same crimes, because they don’t have money can’t be released where others can be released. I mean someone that’s wealthy has no problem dealing with a $100,000 bail; someone that’s poor can’t get out.
And so in that sense it’s both unfair, but also allows sometimes high risk people out, people that might be really risky. If a bail bondsman wants to insure them, then they can, those people can be released. And so there’s that danger that people are also concerned about. So I mean those are the two biggest objections.
The other big one is racial, that black defendants and minorities are often offered bails at three times the amounts as white defendants and I mean that’s not fair, and oftentimes they are not able to obtain release because of those high bail amounts.
J. Craig Williams: Jeff, the Eighth Amendment itself says that excessive bail cannot be charged, but therefore I am assuming that the industry is saying that since there is excessive bail, there has to be some form of bail that’s available under the Constitution, is that within the industry’s position?
Jeff Clayton: Yeah, and certainly that’s the ongoing challenge brought by a former Solicitor General Paul Clement to New Jersey’s system that most likely shortly will probably go to the US Supreme Court on that very point, as to whether, you have a constitutional right to bail, we think you have a right to bail in California and we think that’s indisputable. We think it does mean money and obviously can be more than bail bondsmen as well and we have seen states that don’t have bail bondsmen but they still have fundamental right to bail.
So we think on that point we are correct that there is a right to bail and obviously legislators and judges can sort of decide how expansive it is or isn’t.
J. Craig Williams: How does that position play out in the current jurisprudence, Shima?
Shima Baradaran Baughman: I mean I agree that fundamentally under the Constitution and under current law we do have a right to bail. It doesn’t have to be one that’s based on money though, and so a lot of jurisdictions have applied that and allowed for pretrial release programs or other types of release, conditional release where you sign documents saying I won’t do X, Y and Z and I can be released or other types of monitoring.
So I fundamentally agree with Jeff on that that we do have a right to bail, we need to preserve that, it doesn’t have to be and probably shouldn’t be tied to money because of the unfairness that results. And we are one of the few countries in the world that has this kind of privatized prison system, this privatized bail system, this ability for people to benefit off kind of a misfortune of criminal defendants and that’s a problem.
J. Craig Williams: Jeff, how many bail bondsmen are there in California?
Jeff Clayton: There are around 3,500 licensed agents. We are estimating the total workforce to be somewhere — probably around 15,000 total workers.
J. Craig Williams: Both government and private?
Jeff Clayton: Oh no, those would be all the private — the folks that work on the staffs of the bail agencies and that sort of thing, so if you add the licensed agents plus their staffs, we are thinking it’s about 15,000 private sector jobs that will be wiped out.
J. Craig Williams: Wow. Well, it looks like we have just about reached the end of our program. I would like to take this time to invite our guests to share their final thoughts and their contact information if they like.
So Shima, let’s turn to you.
Shima Baradaran Baughman: Sure, yeah. So Shima Baughman, I am easily found on the University of Utah’s website. And you want to learn more about bail you can look at my bail book, it’s called ‘The Bail Book’ and it’s with Cambridge. So I appreciate you having me on. Thanks.
J. Craig Williams: Great. Jeff, your final thoughts and your contact information if you would please?
Jeff Clayton: Absolutely. Thanks for having me on. americanbailcoalition.org, click IN THE NEWS for all our most recent stuff. Pleasure being on your show. It’s going to be an interesting issue I think for a long time.
J. Craig Williams: Well, perhaps when we get into 2019 and after this has been in place for six months or so we will have you both back on and revisit what kind of disasters are occurring at that point, if any. Great.
Well, that brings us to the end of our show. If our listeners like what you hear today, please rate us in Apple Podcasts. You can also visit us on legaltalknetwork.com, where you can leave a comment on today’s show and sign up for our newsletter.
I am Craig Williams. Thanks for listening. Join us next time for another great legal topic. When you want legal, think Lawyer 2 Lawyer.
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