Silicon Valley De-Bug's Letter of Opposition to California's False Bail Reform Bill (SB10)

Editor's Note:

De-Bug was an original cosponsor of SB10 -- a bill initially aimed at bail reform. Through the legislative negotiation process, the bill has been gutted, and is now essentially a whole new bill. While it eliminates money bail, it replaces it with a pretrial detention system that will continue to incarcerate communities of color. Please remember our shirts read "End Money Bail" AND "Free Our People." In this letter sent to the author of the bill, Senator Hertzberg, De-Bug withdraws our support of SB10 and announces our opposition.

Dear Senator Hertzberg,

This letter is to inform you that Silicon Valley De-Bug will no longer be a cosponsor of SB10, and are opposing the bill. As an original cosponsor, we started this legislative process with tremendous optimism that SB10 could be a historic vehicle to transform the unjust, racist, and destructive bail system in California. Though we understood the process of turning a bill into law would be challenged by a bail industry that had become rich and politically powerful off the extraction of resources from low income communities of color — we believed SB10 could represent an urgently needed shift towards decarceration in the state.

But the final version of SB10 is a complete departure from the original, and is antithetical to the principles of freedom and equal treatment that originally brought us into the legislative discussion. We say this from the perspective of an organization that is made up individuals and families who have had, or currently have, loved ones being held in detention pretrial. We are in courtrooms, specifically arraignments and bail hearings, literally everyday, advocating for the release of community members and the reunification of families. It is from this intimate, and real-time, proximity to the issue of bail reform that we take our position.

The current version of SB10 shortchanges the state by accomplishing one important goal — eliminating money bail — but denies the primary reason as to why communities held this as a rallying cry to begin with, which is to reduce incarceration. The bill trades in the exploitative money bail system for a new pretrial detention regime that keeps people locked up through the use of unregulated risk assessments controlled by law enforcement and expansive, unchecked, judicial mechanisms. It is a legislative bait and switch. We would argue that real progress does not create a false choice between ending money bail or expanded tools of detention — but instead eliminates both apparatus of pretrial incarceration.

The reality is SB10 may keep more people detained pretrial in California than the status quo. This is particularly true in light of the new pretrial landscape due to the Humphrey ruling. In fact, Mr. Humphrey - California’s most significant historical figure in bail reform — would be likely to have been presumed detained under SB10. 

While there are issues we would argue against throughout the bill, several major changes in SB10 have made the legislation not only unsalvageable for us, but directly threatens the freedom of the communities we serve. The bill is designed so individual aspects of SB10 become more problematic when understood cumulatively as parts of a cohesive pretrial detention system. For example, the possibility of risk assessments exacerbating racial and socio-economic disparities of the criminal justice system becomes magnified when placed within the context of the full SB10 pretrial detention system. Such as:

  • Risk assessments become more harmful when wielded and controlled by law enforcement.
  • Risk assessments become more harmful when used to determine a presumption of detention.
  • Risk assessments become more harmful when allowed to be used subjectively by judges with no oversight or accountability.

As we understand SB10 as the articulation of an unprecedented, far reaching, and dangerous pretrial detention system — it is the following interconnected foundational features of SB10 that we believe will drive up incarceration in California despite the elimination of money bail.

Presumption of Detention:

The presumption of detention is in direct opposition to the principle of presumption of innocence, and the clearest example that SB10 runs counter to the call for bail reform. The presumption of detention based on alleged charges also speaks to one of the core problems with the bill, in that it arrives the state back to what ballooned California jails for decades — using charges to determine bail decisions. The bill though even expands who would be detained beyond current charges, and uses past contact with the system and risk assessments to presume detention. Real bail reform should only view detention as a last resort exception. Under SB10, detention is the very first and frequently imposed position of the courts.

The Expanded Use of Risk Assessments — a Tool Wielded by Law Enforcement

Risk assessment instruments can amplify racial disparities inherent to the criminal justice system. As such, any implementation of the tool should be transparent, have rigorous oversight and data collection based on race, and be limited in scope of use. The bill relies heavily upon risk assessments, but without the safeguards and tools that would mitigate its harm. The original SB10 language only allowed risk assessment instruments to inform conditions of release, but the current version allows risk assessment instruments to be a key determinant of release or detention. Mandatory data collection with a racial lens and transparency of the tool as well have also been stripped from SB10, rendering any of the dangers of the tool to be codified as law. The problem of the risk assessment is magnified under the structure of the current bill. The tool will be wielded by law enforcement as described in SB10, and allows for local courts to not only detain those identified as high risk, but moderate risk as well. We anticipate the result of these various factors layered on top of each other will equate to more people being incarcerated pretrial in California.

Law Enforcement Running Pretrial Assessment Services

SB10 mandates that only agencies that have experience “employing peace officers” will run pretrial assessment services. Having law enforcement serving as pretrial services will impact how they are conducting the assessments, as well as the orientation of the supervision. The bill identifies Santa Clara County Pretrial Services, and legislators often point to the agency as a model — yet Santa Clara Pretrial is not run by law enforcement. Rather, it is an independent body. Having law enforcement run Pretrial Assessment Services will result in an inclination towards detention and restrictive conditions. Having law enforcement as pretrial services will also likely lead to violations — similarly to how probation violations can occur for minor incidents or misunderstandings. And again in the context of rest of SB10, where violations, however minor, while being on pretrial release, will be used for future detentions — having law enforcement in charge of supervision will only continue to increase pretrial detention rates.

The Expansive Use of Prior System Contact to Determine Detention Decisions

Much with the same logic of our concern of risk assessments, the SB10 bill relies heavily on system contact, even including arrests, or unsubstantiated violations of retraining orders, which will only expand racial disparity. Failure to appear at court dates are rarely due to someone absconding or fleeing the county, but still get conflated with a label of “risk.” And the use of prior arrests, violations, and convictions are more reflections of the system’s historic targeting of communities of color than they are predictors of individual behaviors. The result of this reliance on past system contact to dictate pretrial decisions will result in the same communities caught in a cycle of incarceration, as there wiIl be more mechanisms the court has to impose detention. In fact, this particular feature of SB10 is arguably the clearest indicator that the bill has no intention of reducing racial disparity, but rather cementing in law system control over communities of color historically already targeted.

Every week for the past 10 years, De-Bug as part of a National Participatory Defense Network, has held meetings with families whose loved ones are facing the criminal justice system. Through the participatory defense model, the aim of our meetings is for communities to impact the outcome of cases of their loved ones, and transform the landscape of power in the courts. It’s how we got involved in bail reform to begin with, locally, statewide, and nationally. It is from these families’ power, intelligence and commitment to freedom that we know real bail reform is inevitable in California. And we know that real reform doesn’t create a false choice of appearing to assist those with minimal prior system contact who have caught low level misdemeanors while putting the rest of California in the crosshairs of the pretrial detention. And from those weekly meetings, we know that those who often are charged with more serious offenses are the ones who feel the most coercive pressure to succumb to plea deals because their trials are such a distant possibility. 

This version of SB10 is telling the families who come to our weekly meetings that not only is bail reform is not for them — but that their freedom is acceptable collateral damage to give California the false impression of bail reform. What we find particularly offensive is that the author and the judicial council would try to use the energy of the movement to end money bail to form a bill that would either incarcerate the communities of this very same movement.

While we believe SB10 must be stopped, we do believe there is real work that the legislature can do to make true bail reform real in California. We believe the most reasoned way forward is to build off of the Humphrey decision. After the Supreme Court has ruled, create legislation that fills the blindspots of Humphrey — such as ensuring people don’t have to pay for pretrial services or addressing pre-arraignment detention. This way bail reform is not a trade off of the current money bail system and a new pretrial detention system.

Please remove name off of any SB10 bill language. We look forward to continuing to be part of the movement to end money bail in California, and set a new national standard for pretrial justice.


Silicon Valley De-Bug

Call Senator Robert Hertzberg and Assemblymembers to oppose SB10 and fight to remove the unnecessary burden of our communities being trapped into debt simply because people cannot afford to buy their freedom.