On behalf of the Tulare County Board of Supervisors, I write to express our opposition to Senate Bill 262 (Hertzberg), the so-called zero bail/affordable bail legislation. We believe this new version of the proposed legislation will most certainly increase pretrial crime in California and threaten public safety.
Under SB 262, nearly all bailable defendants would be released on a zero bail by creating an absolute right to a stated-income release in California. Nearly all persons who would remain in jail under current law would stand to be released by applying that rule to all crimes charged in California. This would mean an astronomical release of individuals - CalMatters noted that 44,241 persons are detained in jail pending trial at any given time in California and cited a recent report from the Yolo County district attorney’s office that found that 70% of offenders released on zero bail were re-arrested.
This legislation is very similar to the law facing ever-increasing criticism in New York, a law that has been significantly scaled back twice since enactment. According to the Manhattan Institute, “For 27 years, from 1993 to early 2020, under the ‘old’ bail laws and the ‘broken’ criminal justice system, index crime in New York City steadily declined by nearly 76%. In just two years of the new bail laws and other progressive reforms, index crimes in New York City rose 36.6%.” Additionally, African-American and Hispanic-American communities are disproportionately the victims of crimes, and those racial disparities are unfortunately increasing since the bail law took effect January 1, 2019. For example, murder and nonnegligent homicide victims were 56.6% African-American before bail reform, and comprise 67% of the victims just two years after bail reform.
Under current law, judges set bail, pursuant to the constitution, that they believe are appropriate and not excessive. If a defendant does not post bail to secure their release, they remain in jail. Under Senate Bill 262 (Hertzberg), a bond that someone does not post cannot keep a defendant in jail. All defendants arrested or charged with a crime in California will instead be released on a stated-income type of bond, typically zero.
Bailable cases that will get a guaranteed release on an affordable bail (since not eligible for detention), to name a few:
• All misdemeanor domestic violence cases
• All violent and other misdemeanor crimes
• Felony sexual assault on a child when great bodily injury is not caused to the child
• Rape when great bodily injury is not caused
• Felony domestic violence cases where there is not great bodily harm or proof of a specific threat
• All non-violent felonies when there is not a specific threat of violence
• All gun crimes where no proof of future great bodily harm or proof of a specific threat
• All carjacking where no proof of future great bodily harm.
• All shoplifting
• All property damage and theft crimes
• All drug dealing crimes
• All sex crimes when there is no great bodily injury
• All hate crimes when there is no great bodily injury or specific threat
Senate Bill 262 eliminates twenty statutorily required bail schedule enhancements for the worst of the worst defendants in California. This legislation will increase pretrial crime in California and backlog the court system since defendants will have no incentive to appear, and no one with arrest powers returning them to court. In fact, the legislature is currently considering further regulation of bail recovery agents, due to the important public safety benefits of returning fugitives from justice to the custody of the State so that the People and victims of those crimes may get justice. That will go away under this legislation.
Finally, this legislation is inconsistent with the California Constitution in several respects, most notably: (1) it conflicts with the bail by sufficient sureties clause in the Constitution, which does not permit ability to pay to be the sole dispositive factor because the People of the State of California have a right to ask for bail by sufficient sureties; (2) it mandates criminal defendant bail refunds and specifying the amount is the setting of insurance rates in statute when that power is vested solely in the Insurance Commissioner; and, (3) it attempts to over-rule the California Supreme Court’s decision in Humphrey by requiring releases of defendants who cannot afford bail when there is a significant risk of flight or a substantial risk of a new violent crime.
We urge all members of the California Assembly to oppose Senate Bill 262. Let’s not turn California into the fugitive capital of the nation by creating the “Public Safety Catch and Release Act of 2022.”
Respectfully,
Eddie Valero, Chair
Tulare County Board of Supervisors
cc: Tulare State Delegation, Shaw Yoder Antwih Schmelzer & Lange