Essie Justice Group Withdraws Support for SB 10

STATEMENT OF OPPOSITION TO SENATE BILL 10

Essie Justice Group is withdrawing our support of Senate Bill 10 (Hertzberg), a bill we have co-sponsored for nearly two years. In light of significant and recent changes to SB 10, we now firmly and formally oppose its passage.

Essie Justice Group is the country’s leading organization of women with incarcerated loved ones. In today’s age of mass incarceration, 1 in 4 women has a family member behind bars, and over 2.7 million children have an incarcerated parent. Our membership consists of mothers, sisters, daughters, wives, and grandmothers of loved ones in California jails and prisons. From exploitative bail industry fees to bail amounts set at 10x higher than the national average, the money bail system in this state is impoverishing, inhumane, and inconsistent with our collective goals of health and wellbeing.

Today, most people who are charged with a crime are eligible for release on bail, based on

rights they are afforded by the California Constitution. Judges are responsible for determining what conditions of release to impose, if any. Conditions of release are intended to ensure that a person return to court for their court dates until their case is over. Monetary bail is a heavily relied upon condition of release in California and one of the most glaringly discriminatory aspects of our criminal justice system. Under current law, judges assign a monetary bail amount for the charged person to pay based on a county bail schedule (a list of charges with amounts of money designated to each). If a person can afford to pay, they can get out of jail, but if they can’t afford to pay, they remain incarcerated. These laws have led to the growth of a predatory bail industry and an overflow of people incarcerated in jails simply because they cannot afford their bail.

SB 10 was an opportunity for California to become a leader among states and federally on bail reform. In the wake of the tragic deaths of Kalief Browder, Venida Browder, and Sandra Bland, directly impacted people, system stakeholders, corporations, prominent influencers, media, civil and human rights organizations, and the general public have rallied for an end to this predatory industry and unjust system. Many of us had high hopes that California would set forth a new vision for pretrial justice that does right by those hardest hit by mass incarceration policies.

As women with incarcerated loved ones, we are the ones who’ve emptied our savings, put up homes for collateral, and gone into debt to pay bail industry fees. We are Black and Brown women who are disproportionately impacted by incarceration, many of us being formerly incarcerated ourselves. Every moment that a parent is needlessly inside a cage pretrial is a moment a child is made vulnerable and a family inhumanely separated. We understand that bail is a vestige of slavery, of putting a price on freedom, and of creating legal avenues for individuals to be subjected to bodily control and degradation without being convicted.

Our members have met regularly, read and analyzed the bill language, pored over amendments, made trips to Sacramento for hearings and to speak with legislators, and discussed with their families and communities what good bail reform in California could look like. SB 10 was a bill we believed had great promise. We were saddened when the bill we had been supporting as co-sponsors was replaced with a piece of regressive criminal justice policy.

Unfortunately, SB 10 has deviated so substantially from its introductory language that it now turns its back on California communities–particularly Black, Brown, and low-income–who have been most harmed by the bail industry and system. In its new form, SB 10 puts California on a path to more incarceration, entrenches racial, socio-economic, and gender bias in our pretrial system, and funnels more money and power to carceral authorities.

Our primary reasons for opposing are as follows:

1. SB 10 legitimizes the mass incarceration of people pretrial through a “rebuttable presumption” of detention — sending CA on a path to more incarceration, not less.

Too many people are incarcerated because of money bail. Yet the new language of SB 10 devises a mechanism by which judges will be able to (and are even encouraged to) presume that people should be detained pretrial rather than released.

In doing away with monetary bail, the new language of SB 10 now provides that for a very large category of people, there will be a “rebuttable presumption” of their detention. This means that those who before had at least a legal avenue (if not a practical one) to freedom, now will face a legal default of incarceration.

The Constitution creates a fundamental interest in pretrial liberty–an interest, as the Humphrey court put it, “second only to life itself” in constitutional importance. Liberty is the norm, while detention prior to trial is the “carefully limited exception.” The current SB 10 turns this principle on its head. A rebuttable presumption of detention will make pretrial incarceration functionally inevitable for an extremely large number of legally innocent Californians in the pretrial system.

For women with incarcerated loved ones, this means that under the new SB 10, our families will continue to be needlessly torn apart and our lives damaged by constant, unnecessary, and reckless incarceration. A third (32%) of women with incarcerated loved ones lose their household’s primary source of income when their loved one is taken away. These financial, mental, and emotional burdens will only grow with each day that our loved ones sit in cells pretrial, legally innocent, yet detained nonetheless.

2. SB 10 entrenches race, gender, and socioeconomic bias in the criminal justice system through a heavy reliance on risk assessment tools.

Essie Justice Group has long been skeptical of the use of risk assessment tools in our pretrial system. Risk assessments are tools that use data to predict a person’s likelihood of returning to court or being arrested. Risk assessment tools perpetuate the biases of the carceral system by considering factors that correlate with race, gender, age, and socio-economic status when assessing someone’s risk. The original language of SB 10 contemplated the use of risk assessment tools alongside some safeguards, limiting their influence, in an attempt to prevent against the well-documented discriminatory impacts. Importantly, these tools were being used to help determine what additional conditions a court could impose to facilitate release.

The new language of SB 10 heavily relies on risk assessment tools to detain people. Before arraignment, everyone who receives a risk assessment score of “high” will be incarcerated. Everyone who receives a risk assessment score of “medium” can be incarcerated as well, depending on the whims of the local county. Instead of a limited scope, SB 10’s new language broadly defers to risk assessment tools at various stages in the pretrial process to facilitate incarceration. The judicial reliance on risk assessment tools at arraignment is particularly concerning. If passed, we will see a bias-prone algorithmic decision used to justify years of pretrial incarceration for people in California.

Also concerning, the language in SB 10 does not require that judges and risk assessment tools distinguish between risk of failure to appear and risk of arrest. These are two very different things. A person’s failure to appear could reflect anything from a lack of childcare to a lack of transportation to the courthouse; a person’s risk of arrest could reflect anything from houselessness, to mental health needs, to likelihood of being racially profiled. For a wide set of human circumstances, SB 10 uses an alarmist and simplistic category of “risk” and responds with incarceration, instead of appropriately recognizing a variety of needs and responding with quality, community-based services.

A major driver of mass incarceration is the set of policies that confuse need with criminality. All of the War on Drugs policies have made this error. Where treatment could have saved lives and resources, incarceration became the ill-fitting solution. SB 10 adopts the “logic” of mass criminalization, by also conflating need with criminality. Without at least requiring that risk assessments distinguish between between risk of failure to appear and risk of arrest, SB 10 perpetuates the very harms it once sought to mitigate.

Risk assessment tools are prone to racial, gender, and socio-economic bias, because they rely on criminal justice data. Since the criminal justice system operates in discriminatory ways–disproportionately harming communities of color, women, and low-income people–these algorithmic assessments can be dangerous. For example, when risk assessment tools factor in someone’s entire arrest history, as SB 10 permits, they are entrenching racist policing practices and actually using them as reason to detain people pretrial. When we turn data that is correlated with race, gender, and socio-economic disparities into “objective” criteria, we formalize and legitimize past bias. Moreover, through lack of common sense oversight and other safeguards, SB 10 willfully ignores the discriminatory impacts of these algorithmic assessments.

Given the well established shortcomings of these tools, the lack of oversight and safeguards in SB 10 is irresponsible. SB 10 weakly instructs that bias should be avoided and makes empty mention of the Judicial Council developing a list of “validated tools.” Assigning judges with the responsibility of this meager measure of quality control is a conflict of interest.  It provides no requirement that counties disclose the type of tool they choose, making community and public oversight impossible. Moreover, as recently as last year, the California Judicial Council was scandalized by the revelation of their own anti-Black, racist depictions of Black people at an office party. With ample options available for oversight, SB 10 fails in its obligation to guard against the discriminatory impacts of the tool it employs.  

3. SB 10 expands the reach of the punitive and supervisory arms of the criminal justice system through a heavy reliance on the Department of Probation.

In SB 10, the Judicial Council of California is the primary authoritative body responsible for bail reform. According to SB 10, the Judicial Council will work with the Chief Probation Officers of California to develop the contracts and parameters for the creation of a new department in each county, Pretrial Assessment Services. The requirements for who can apply for these contracts are that the agency (1) have experience making risk-based determinations, (2) have experience making recommendations to the court, (3) have experience supervising people who have been convicted of a crime in the community, and (4) have experience employing police. Because Sheriffs’ departments and police departments are rightfully excluded from providing pretrial assessment services, this leaves probation departments to be the only existing departments that meet the requirements for providing pretrial assessment services.

According to SB 10, the new Pretrial Assessment Services department exists to determine risk, increase surveillance of people released pretrial, and make detention recommendations. These functions do not constitute services, they are mechanisms of punishment and control. As already stated, providing people with access to services is the best way to address concern that individuals will not return to court or be re-arrested. Onerous conditions, such as those probation departments are accustomed to administering, should be avoided or the absolute last resort. The exclusive use of probation as the pretrial services authority is another example of how SB 10 relies upon the regressive logic of mass criminalization — replacing services with punishing conditions.

It’s absurd that SB 10 ignores so many promising options for ameliorating some of the largest harms the criminal justice system causes. Such options include the provision of support services, such as providing childcare and bus passes, and notification systems, such as text message and phone call reminders. These non-punitive measures are also cost-saving. One text messaging service that allows users to both send and receive messages decreased Failures to Appear (FTAs) by 75% for an annual cost of only two dollars per person. SB 10 as written has no mention of these support services, and no requirement that Pretrial Assessment Services have experience with service provision.

At a time when the United States is looking to California for leadership on bail reform, SB 10 threatens to set a dangerous precedent for flawed pretrial justice reforms that can result in an increase in incarceration, systemic bias, and carceral authority nationwide. The tragic reality is that the passage of bad bail reform carries substantial human consequences. Our opposition comes after much reflection and with significant disappointment. As women with incarcerated loved ones and former co-sponsors of this bill, we have been battling the bail industry at home and on the frontlines of advocacy. We know what it means to end the predatory reach of this industry into our communities. We will continue to fight for that reality. Unfortunately, we cannot trade this victory for the possibility of increased incarceration and harm to our communities.

For the above stated reasons, Essie Justice Group firmly opposes Senate Bill 10 and asks for the California legislature to vote “no.”