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Why The ACLU Opposes California's Move To End Cash Bail

Sen. Bob Hertzberg (D-Van Nuys) holds a press conference on SB 10, his bill that would end cash bail in California, in this undated photo.
Ben Adler/Capital Public Radio
Sen. Bob Hertzberg (D-Van Nuys) holds a press conference on SB 10, his bill that would end cash bail in California, in this undated photo.
Why The ACLU Opposes California's Move To End Cash Bail
Why The ACLU Opposes California's Move To End Cash Bail GUEST: Margaret Dooley-Sammuli, criminal justice and drug policy director, ACLU of San Diego and Imperial Counties

yesterday on Midday Edition we heard from San Diego County District Attorney Sommer's Stefen about how San Diego plans to replace cash bail with a risk assessment protocol designed to assess the danger and flight potential of the accused. We were ahead of that in that we already have a risk assessment tool that seems to be working well that balances the risk and safety of the community with the defendants rights. So we're hoping that that a validated tool will continue to be used because it's been tested for a year. Today we hear from the ACLU a group initially behind the push to end cash bail but now opposed saying the new law just trades one inequitable system for another. Joining me is Margaret Juli's Sam Lee with the ACLU of San Diego and Imperial Counties. And Margaret welcome back. Great to be here. The ACLU went from supporting the bill to being neutral on the bill to opposing the bill. What happened to change the organizations support the bill changed. So our mission starting out was to end the inequitable money bail system. It needs to be replaced then and to replace it with a system that better protects due process and ensures protections against unfair treatment based on perhaps unconscious bias. So although it's exciting that the bill would end money bail in California and that's no small feat that's a major victory. We are concerned that the system put in place to replace it doesn't have all the protections we need to ensure due process and fair treatment. Well you know supporters of this say that it's not just some arbitrary system that they're going to be using. There would be a risk assessment policy using an algorithm based on a number of factors about the person's history and whether they have previously failed to appear in court. Why wouldn't a system like that sort of help assuage your fears about how this is going to be implemented. Well for one thing the judge makes the final decision under the California Constitution. And that's critical. It shouldn't be an automatic decision. That's very problematic especially when these algorithms which sound very scientific and in fact are the reality is the data you put in creates the kinds of predictions they will make. I'm not sure that there's any debate anymore about whether certain communities are more heavily policed than others. There will naturally be more arrests in those areas and they will be low income people and people of color more likely. And so because of that things like previous arrest or age of first arrest or things like that they're absolutely loaded with cultural bias that is exhibited that permeates the criminal justice system. So one is just they don't ultimately control and they shouldn't. They're both scientific and seriously flawed. And the reality is that in the criminal justice system where we see the worst disparities in treatment is in places where there is discretion. And this bill provides substantial discretion to to detain people without trial. That is very problematic so it leans too much toward detention than we would like and it doesn't have in place protections against unfair impact of a use of risk assessment tool. Isn't it possible you're finding fault with the system before that. Is even in place. Absolutely. This is a gamble and so nothing in this bill in and of itself guarantees that the system that that is ultimately put in place doesn't include those protections. But it's important for us to acknowledge going into it that those things very much need to be added from here. I mean we've just heard about the bail industry trying to go after SB 10. So we know that although the governor has signed the bill the fight is far from over. Can you give me an idea of some of the practical changes you would like to see in this law. We'd like to see more opportunity to challenge the risk assessment more transparency about a risk assessment. It's concerning that there is also not in the bill a definition of low risk medium risk and high risk which are the results you'll get from a risk assessment tool. Well what's high risk according to some tools you might have a 95 percent chance of reappearing and still be labeled high risk. So you know and there could be a situation in which that's that's appropriate because of other factors but it can also be designed that way which tool is used and how it will be used. How the. What the meanings of those terms will be none of that is settled except that we know that there is going to be substantial discretion at the local level which for a place like San Diego might be good but for a place like oh I don't know most other counties that won't result in a you know. We don't have confidence that that's going to result in really protected fair treatment. And I would say even in San Diego that's not a foregone conclusion at all. And so what it means is having to monitor that kind of thing over 58 counties would be great if there were one statewide that could be best monitored and challenged and data collected for. I've been speaking with Margaret Dooley Samii with the ACLU of San Diego and Imperial Counties. Margaret thank you. Thank you.

This week, California Gov. Jerry Brown signed into law a bill to end cash bail for suspects awaiting trial.

The American Civil Liberties Union initially supported the measure, but after changes to the bill, the group is now opposed. The ACLU said the law trades one inequitable system for another and may actually lead to more incarceration.

RELATED: California Becomes First State To Eliminate Bail Before Trial


Meanwhile, the bail industry announced Tuesday it's launching a referendum to overturn the law.

Margaret Dooley-Sammuli, director of criminal justice and drug policy at the ACLU of San Diego and Imperial Counties, talks about why the ACLU is disappointed with the law Thursday on Midday Edition.

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