As the Journal went to press Aug. 28, Gov. Jerry Brown signed a landmark bill that will reshape California's criminal justice system. It will also directly prompt the closure of Steve Payton's three Eureka businesses.
The bill — Senate Bill 10 — eliminates California's cash bail system that currently determines whether criminal defendants are held in custody as they await trial, replacing it in October of 2019 with a controversial set of mandates and risk assessments. Once widely supported by civil liberties groups and others clamoring for criminal justice reform, the bill was dramatically overhauled just 72 hours before its Aug. 21 passage, prompting a slate of strange bedfellows, including the American Civil Liberties Union and the California Sheriff's Association, to unsuccessfully urge Brown to veto the bill.
Like almost every other state in the nation, California currently operates on a cash bail system that allows people charged with a crime to offer money in exchange for their freedom as they await trial, either directly or through a bail bond company, like Payton's businesses in Eureka. The system allows defendants to essentially carry on with their lives — going to work, caring for their kids and whatever else — as their cases work their way through court, while also ensuring they have an incentive to stay out of trouble and show up for their hearings.
In simple terms, it works like this. Imagine you are arrested for carjacking, which in Humboldt County comes with a bail of $250,000. If you want to be released pending trial in your case, you'd have to come up with the $250,000 out of pocket to turn over to the court. If you make all of your court appearances and stay out of trouble until your case is resolved, you'd get your $250,000 back. Or, if you can't afford the full sum — which most defendants can't — you could work with a bail bond office, like one of Payton's, which charges 8 to 10 percent of the total bond — a fee of $20,000 to $25,000 under the carjacking example — to carry the rest of the bond. If you show up for all your hearings and stay out of trouble, the bond would be forgiven at the conclusion of your case. If you don't, the company carrying the bond would have to pay it in its entirety and then would come after you — or your co-signer, your house or whatever you put up for collateral — to recoup the other $225,000 to $230,000.
While most feel the system sufficiently incentivizes defendants to stay out of trouble and show up at all their court dates, many have come to feel it is inherently unjust, as it predicates someone's release from custody on their personal wealth. After all, in the above example, wealthy defendants would simply post bail and continue on with their lives while others accused of the exact same offense but who didn't have $20,000 on hand would be held in custody for the duration of their cases, potentially leading to a loss of employment, a loss of housing, the removal of children from their care or other impacts of a long-term detention.
Under the new paradigm signed into law by Brown, money will be removed from the equation and pre-trial releases will be mandated for lower-level crimes and dictated by "risk assessments" for most felonies.
"Today, California reforms its bail system so that rich and poor alike are treated fairly," Brown said in a signing statement.
But while most Humboldt County officials seem to agree the cash bail system is flawed, they also expressed some serious concerns about the new law.
Humboldt County Sheriff William Honsal said he's concerned with the way Senate Bill 10 will restrict his department's discretion when it comes to misdemeanor defendants. Currently, Honsal said his office has an agreement with the court under which it conducts an initial risk assessment when a defendant is booked into custody, looking at the defendant's likelihood of staying out of trouble and making future court dates as well as his or her perceived risk to the community. The vast majority of people arrested for misdemeanors are booked and released on their own recognizance with a promise to appear in court, the sheriff said.
But Senate Bill 10 now requires that folks arrested for nonviolent misdemeanors be released from custody within 12 hours, which Honsal called an "overreach." Sometimes, Honsal said, it takes 18 or even 24 hours for people arrested while under the influence of methamphetamine to sober up and stabilize, allowing jail staff to really ascertain whether mental health issues may be at play and whether it is safe to release them from custody. Additionally, he said the 12-hour mandate may necessitate the release of some people in the middle of the night — a practice that has drawn concern and condemnation since Jan. 1, 2014, when a beloved local priest was murdered by a man released from jail around midnight.
"It's tricky waters," he said.
Humboldt County Public Defender Marek Reavis, who fully supported the concept of abolishing cash bail, has a different set of concerns. Echoing the protests raised by the ACLU, Reavis said his concerns fall on the felony side of things. The new law will require most felony defendants to undergo a risk assessment and then go before a judge, who will determine whether "preventative detention" is necessary to either keep them from fleeing and failing to show up for court or to protect the public against their committing additional crimes. The fear is that judges will be overly cautious and keep most felony defendants in custody for fear of ordering someone released only to see them commit additional offenses.
"It may end up just as unjust (as cash bail) and perhaps even increase the number of suspects jailed while they await trial," he said in an email to the Journal. "Basically, S.B. 10 is better than what we've got now but, in its present form, it's not the bail reform I'd hoped for."
District Attorney Maggie Fleming, meanwhile, said she's neutral on the bill. While she believes in its basic principle of doing away with cash bail, she's concerned whether the risk assessments will accurately assess community risks when weighing whether to release someone from custody.
While it's not immediately clear how the new law will work — it just requires that counties contract with a public agency to conduct the risk assessments and tasks the Judicial Council to hammer out the specifics — it seems likely in Humboldt County that the probation department will take on the assessments. Reached by email, Interim Chief Probation Officer Shaun Brenneman said his department is already working with the sheriff's office in a pre-trial assessment program implemented in the wake of the state's prison realignment law, which decreased prison populations by overcrowding local jails.
Payton, who owns Bill Davidson Bail Bonds, Steve Payton Bail Bonds and Venture Bail Bonds in Eureka, said he worries that judges will be reticent to grant releases under the new law, putting the jail back on the road toward overcrowding. But, really, he has an entirely different concern, namely that the new law will put him and other bond agencies out of business.
Payton, who said he's frustrated with the way this bill was amended at the proverbial 11th hour and passed without a thorough vetting, said he's attempted to contact members of the Eureka City Council, the Humboldt County Board of Supervisors and his state representatives — Sen. Mike McGuire and Assemblymember Jim Wood, both of whom voted for the bill. He's gotten little response.
While Payton conceded the current bail system is in need of reform — he said he'd like to see a uniform, statewide bail schedule, for starters — he thinks it generally works well. Payton said he currently has about 50 clients whom he has bonded out of jail, saying that because he has a vested monetary interest, he works with each of them to make sure they're showing up at court dates and staying out of trouble. And when one of them skips a hearing, Payton said he then has a vested interest in tracking them down — if he can do it within six months, he can avoid forfeiting the rest of the bond. Under the new system, he asked, who will be tasked with tracking down defendants who fail to appear?
"Somebody who is out on supervised release, if they don't show up for their court hearing a warrant goes out for them, sure, but who's going to go out and look for them? Nobody," he said. "What happens is they will wait until they reoffend and then they will also get a failure to appear. ... I have (a client) right now who skipped and if I can't find him, I have to pay the courts $25,000. I haven't been able to find him but I'm going to keep trying."
According to data supplied by the Sheriff's Office, about 430 people have been released from custody since the beginning of the year after posting bail, which is about 7 percent of all arrestees. (The vast majority of the others were released on their own recognizance after a misdemeanor arrest or after sobering up from a public intoxication arrest.) Under the new law, most of those 430 people's custodial status would have been decided by a judge.
Speaking to the Journal just a couple of hours before Brown signed S.B. 10 into law, Payton said he imagined that if Brown signed the bill he'd look to sell his home and move out of Humboldt County, where he has lived for 25 years.
"I've already seen all my friends who are bail bondsmen go out of business," he said, adding that since prison realignment when the jail started releasing the vast majority of misdemeanor arrestees after booking, it's been hard to find enough business to make ends meet. He's since closed his storefronts, operating his businesses out of his home, and scaled back to the point where he and his wife are the only employees.
While there is plenty of uncertainty surrounding the new bill, one thing is very clear: It will place more power into the hands of Humboldt County Superior Court judges.
"The specific consequences of the bill for Humboldt County will be determined by individual judges because the bill will place decisions about the trade-off between public safety and custody of the accused firmly in their hands," Fleming said.
Editor's note: This story was updated from a previous version to correct Humboldt County Public Defender Marek Reavis' title. The Journal regrets the error.
Thadeus Greenson is the Journal's news editor. Reach him at 442-1400, extension 321, or firstname.lastname@example.org. Follow him on Twitter @thadeusgreenson.