SB 10: Pretrial Release and Detention

Overview

Senate Bill 10 (Hertzberg, Stats. 2018, ch. 244) authorizes a change to California’s pretrial release system from a money-based system to a risk-based release and detention system.

SB 10 assumes that a person will be released on his or her own recognizance or supervised own recognizance with the least restrictive nonmonetary condition or combination of conditions that will reasonably assure public safety and the defendant’s return to court.

What Does SB 10 Do?

Creates series of categories of persons and offenses:

  • Different levels of review
    • Misdemeanors - Most are cited and released within 12 hours
    • Greater scrutiny as seriousness of the offense increases
  • Detention is based on risk, not lack of money
  • Eliminates cash bail or bail bonds
  • When there is very strong evidence that no conditions of release can reasonably assure public safety, a defendant can be detained pretrial, regardless of financial resources

Important Information on SB 10

Overview of the Pretrial Process Under SB 10

Frequently Asked Questions


Under SB 10, judges will have the same discretion to release or detain individuals pretrial as they do now under the current money bail system.  SB 10 establishes Pretrial Assessment Services that will gather information and provide reports to aid judges in the decision about whether a defendant is a risk to the public or likely to return to court if released before trial. In addition, Pretrial Assessment Services will recommend conditions of release. Judges will not be bound by the Pretrial Assessment Services reports and recommendations, but those will serve to inform judges’ decisions. Judges remain the final authority in making pretrial release or detention decisions.

No. The risk assessment tools that Pretrial Assessment Services uses contain algorithms that weigh various factors to measure the level of a person’s risk to reoffend or fail to appear if released pretrial. Although Pretrial Assessment Services will have authority to release low and some medium-risk individual before arraignment, judicial officers remain the final authority in making pretrial release or detention decisions. The risk-level information obtained from the risk assessment tool, combined with the recommendation provided by Pretrial Services, will inform the judge’s decision. But in every case the judicial officer can override the recommendation.

The goal of a risk assessment-based pretrial system is to release people from custody as early as possible in the process, and with the least restrictive conditions that will help to ensure their return to court and protect public safety, and to preventively detain only those for whom no set of conditions will assure public safety or return to court. While national data is limited, jurisdictions that have implemented robust risk assessment-based pretrial systems report low rates of re-arrest for those released as well as low rates of failure to appear. For example, in Kentucky, the Pretrial Services agency recommends release on own recognizance in 89% of cases involving low-risk defendants, in 60% of moderate-risk cases, and in 50% of high-risk cases. For those high-risk defendants who are released, 71% do not have a failure to appear and 86% are not rearrested during the pretrial period. Many low and moderate-risk cases require only minimal monitoring, such as court date reminders and monthly check-ins, while higher risk cases benefit from increased supervision which can include more frequent check-ins, drug testing, and electronic monitoring.

A 2015 survey of counties indicated that 46 of the 58 California counties have some type of pretrial program, and 70% established their programs in the past five years. However, Santa Clara, San Francisco, Humboldt, Riverside, Imperial, and Santa Cruz counties have had pretrial programs for many years. At least 49 counties use a type of pretrial risk assessment tool that provides judges with information about the risk of releasing a defendant before trial.

Currently, approximately two-thirds of California’s jail population—or nearly 48,000 people—are unsentenced, according to the Board of State and Community Corrections’ annual Jail Profile Survey. This includes both people who are eligible for release but have not (or cannot) post money bail and those who are not eligible for release.

In 2016, there were approximately 3,200 licensed bail agents, 155 bail agencies, and 17 sureties conducting business in California, according to the California Department of Insurance (CDI). A CDI report from 2011-2013 found bail agents each year posted an average of 205,000 bail bonds and collected an average of $308 million in non-refundable premium fees from defendants, their friends and families.

In recent years, New Jersey and New Mexico instituted sweeping reforms to limit or end money bail. For decades, Kentucky and Washington, D.C. have run systems that primarily rely on risk assessments with very limited use of money bail. Beyond these reforms, lawmakers in 44 states and Washington, D.C. enacted 118 new laws during 2016 addressing pretrial release and detention.