Sacramento will release some defendants without bail in test of new California system


UPDATED AUGUST 09, 2019 1:14 PM 

Sacramento will start releasing some defendants from jail without posting bond as part of a pilot program aimed at helping California courts end reliance on bail for suspects awaiting trial. A panel of California judges and court executive officers selected Sacramento as one of 16 counties to launch a 2-year risk-assessment program to evaluate whether suspects should be released from jail before trial. The state’s Judicial Council, which makes policies for California courts, voted Friday to give Sacramento and the other recommended counties the money. 

Sacramento won’t eliminate bail under the pilot program, which already has some funding from the county. But Newsom has touted the state funding for such pilot programs as a step toward ending bail in California, one of his campaign promises. Of the $75 million Gov. Gavin Newsom and lawmakers put in the state budget for the pilot programs, Sacramento will receive about $9.6 million. Most of that will go to the county’s probation department, which will assess defendants and monitor them if a judge determines they should be released. 

The department tentatively plans to hire 13 sworn officers and two administrative employees with the money, said Shawn Ayala, probation division chief. Sacramento Superior Court is also slated to receive some of the funding to hire as many as five additional staffers to administer the program. The program will be available to defendants regardless of financial status and will focus at first on people accused of relatively low-level offenses, including some property crimes, drug crimes and cases of driving under the influence, supervising probation officer Merril Emelio said. “We’re going to start somewhat conservatively, just like you should anytime you begin something that represents a change in the criminal justice system,” Chief Probation Officer Lee Seale said. “We will see how it goes and course correct as necessary.” 

The county will use a tool called the Public Safety Assessment to score defendants on how likely they are to show up for their court dates, their probability of committing a crime if they’re released pending trial and whether that crime might be violent. The assessment scores defendants based on answers to nine questions about their age, criminal history, previous failures to show up for scheduled court dates and whether they’re accused of a violent crime. It then assigns defendants a risk rating from one to four. A judge can use that evaluation to decide whether to release a defendant from jail. 

Before being released, defendants would have to agree to certain monitoring conditions set by a judge based on their risk level, such as regular check-ins at the probation office or GPS monitoring, Emelio said. The program could begin as early as next month and will be fully up and running next year, Ayala said. 

Opponents of bail, including Newsom and top state lawmakers, say the practice unfairly punishes people for being poor and doesn’t make the community safer. Last year, the Legislature passed a law to overhaul the state’s pretrial release system and make California the first state to completely end bail. That law was slated to take effect in October of this year, but the bail industry has since put a referendum on the 2020 ballot that could overturn the law and delays implementation until voters weigh in. Some civil rights groups who oppose bail in theory also oppose the law because they worry pretrial risk assessment systems will discriminate against black and brown defendants by relying heavily on previous criminal history. Some groups also argued the new law could actually result in more people being jailed before trial. 

Other opponents argued the opposite: that eliminating bail will allow dangerous criminals out of jail without a financial incentive to return to court. Sacramento will join some other counties in California that are already using risk assessment tools to release defendants before trial. Chesa Boudin, a deputy public defender in San Francisco, says since San Francisco began using the Public Safety Assessment tool, they’ve seen an uptick in people being released before trial. 

There were several factors that could have contributed to that increase, but Boudin says he thinks it’s at least in part because of the tool, particularly for defendants who haven’t yet been formally arraigned. He cautioned that even though the tool is often billed as purely empirical, there’s still the potential for bias. The tool relies heavily on the charges someone is booked on, which means police can affect the algorithm based on the charges they file, and judges still have ultimate discretion about whether to release someone. And although the tool doesn’t explicitly factor in a defendant’s race, race is still “very much a part” of the result because of that reliance on criminal history, he said.

​ “Those rap sheets reflect the racial bias that we’re seeking to avoid by using these tools,” Boudin said. In Sacramento, people accused of serious violent crimes or who have serious past convictions, such as sex offenders, won’t be eligible for the program, Ayala said. Seale said he hopes to partner with community groups to help defendants in the program avoid criminal activity and show up for their court dates. For example, a defendant could be connected with a community group that can help organize rides for them to the courthouse or call them to remind them when they need to show up. 

The risk assessment tool uses criminal history but still aims to reduce the influence of race and financial status by not explicitly relying on that information, Seale said. “The whole goal of this program is to take those things out of the equation,” he said. “A rich person should be treated like a person without means under our pilot.” 

This story was originally published August 9, 2019 5:30 AM.