Senate Bill 10 is a bill that is after it’s time.
by Jeff Clayton, Executive Director, American Bail Coalition
Senate Bill 10 in California is what bail reform looked like three years ago. Then, it was all the rage to use big data to tap-dance our way out of problems in the bail system by accurately predicting who was risky and then by recommending who gets an ankle monitor and who doesn’t.
Senate Bill 10, championed by Senator Robert Hertzberg (D-18), is going to create a new risk-based system in determining the release of criminal defendants. Yet, the cracks in the system proposed are no longer just cracks.
“They don’t necessarily get more people out of jail, they can’t compensate for judges’ biases, and they can actually reinforce biases by using inputs that serve as proxies for race.”
Professor O’Neill notes three jurisdictions where the risk assessments did not work: Lucas County, Ohio, Kentucky, and Chicago. O’Neill noted that none of the algorithms did anything to reduce mass incarceration, despite being promised to do so.
Further, Senate Bill 10 does not require full transparency with “publicly available audits that could expose the racial disparities in their scores.” In fact, the Arnold Foundation risk assessment being used in San Francisco is one example of a proprietary risk assessment where not only can the public not get behind the curtain, the parties in a criminal case and a judge would have difficulty since the Arnold Foundation is asserting trade secret protections due to the contract signed with San Francisco County.
Professor O’Neill calls for the adoption of the costly Washington, D.C. system as an alternative, arguing that there is no need for an algorithm to do bail reform. Yet, the cost to replicate that in California would be extreme. California’s population is 57.3 times larger than Washington, D.C. The Washington, D.C. system costs $65 million annually. Thus, California should expect to spend $3.7 billion to implement such a system.
The fundamental premise of bail reform three years ago, and still embodied in Senate Bill 10, was that the risk-based system would reduce mass incarceration, get rid of financial conditions of bail, and deliver better results. Yet, that just has not happened, and it seems that looking at some other less radical reforms in California might be in order. Perhaps devoting scarce resources instead to diversion and prevention programs might be a better use of taxpayer dollars.