California – “Look before you leap on bail reform bill” – Marin County Deputy District Attorney

Marin Voice: Look before you leap on bail reform bill

(published by – Aug 16 2017)

by A.J. Brady

Reforming the cash bail system is emerging as a progressive cause in California and around our nation.

On Aug. 7, former federal anti-trust attorney and candidate for Marin District Attorney Anna Pletcher, firmly embraced SB10, the “Money Bail Reform Act” and challenged other candidates for Marin County district attorney in 2018 to get on board.

Despite my commitment to social justice and equity, I cannot in good conscience support this poorly structured, dangerous bill and I urge others to look before they leap.

Looking at SB10 through the lens of a practitioner of California criminal law, it is instantly clear why the California Police Chiefs Association, the California Chief Probation Officers Association, the California District Attorneys Association and the California Judicial Council are all waving the red flag and opposing it, as drafted, despite being open to both bail reform and other progressive reforms to the criminal justice system.

Among its many flaws, SB10 follows in the footsteps of other decriminalization efforts by conflating the plain English and legal definitions of “serious” and “violent.”

“Serious” and “violent” felonies are specific legal terms of art referring to a specific list of 50 of the “worst of the worst” crimes. All other crimes, aside from these 50, are not “serious” or “violent” for purposes of California criminal law.

SB10 as drafted would virtually mandate a release directly after arrest or within a few days at arraignment with either no conditions or the most minimal conditions appropriate for all those who are charged with non-“serious or violent” felonies.

Practically, this means expedited releases for those charged with human trafficking, those who kill others while driving under the influence, those who arrange to meet minors for sex acts, those who solicit others for murder, the list goes on and on. That is because these are not “serious” or “violent” felonies per California law, even though most rational people would agree that these are indeed both serious and violent.

Further, SB10 hamstrings police, prosecutors and judges themselves by creating extremely unrealistic and onerous legal processes, presumptions and timelines if they intend to try to contest these mandated release procedures.

It is also likely that SB10 is unconstitutional as drafted because it conflicts with the state constitution and victim-notification portions of the California Victim’s Bill of Rights, Marsy’s Law.

Alternatives exist — rather than creating rigid unworkable systems like SB10, a well-crafted bill could incentivize and encourage meaningful change.

For example, senators Kamala Harris and Rand Paul are presently offering a bill that would provide financial incentives in the form of grants to courts that provide meaningful improvements to the cash bail system. California could replicate this incentive system — which would be welcome in a time when California Courts are woefully underfunded.

SB10 is not “an important first step towards enacting the reform we need” as characterized by Ms. Pletcher. SB10 is a seismic, wholesale change in California criminal law at the state level that will have predictable and negative consequences for public safety.

As a candidate for district attorney, I am firmly in favor of thoughtful and equitable improvements to the bail system. However, on this issue, I stand with law enforcement, probation departments, and fellow district attorneys in opposition to the presently drafted SB 10.

Our community deserves better.

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