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California celebrates a milestone in bail reform, but the end result may not impact mass incarceration.

On August 28, California Governor Jerry Brown signed into law SB 10, which eliminated money bail entirely.Alexei Koseff, “Jerry Brown Signs Bill Eliminating Money Bail in California,” Sacramento Bee, August 28, 2018 (updated August 29, 2018).

Earlier versions of the bill—which eliminated money and commercial bail bonds and would have required judges to consider release on recognizance or release with pretrial services and support—garnered enthusiastic support from groups ranging from grassroots and advocacy organizations like Essie Justice Group and Silicon Valley De-Bug to larger organizations like the ACLU and Californians for Safety and Justice.Bay City News, “Changes To State's Bail Reform Bill Turn Supporters Into Opponents,” SFGate.com, August 16, 2018. But, after last minute amendments and by the time the bill reached Brown’s desk, it faced opposition not just from California’s 2,200 bail bond agents, but even from many of its former supporters.For the number of California bond agents, see Koseff, “Jerry Brown Signs Bill Eliminating Money Bail,” 2018. For a general discussion of the law and its criticisms, see Abbie VanSickle, “So Much for The Great California Bail Celebration,” The Marshall Project, August 30, 2018.

The version of SB 10 signed into law—including the amendments to it that expanded preventive detention—was in response to a landmark bail lawsuit, In re: Humphrey, decided by the California Court of Appeal in January 2018.In re Humphrey (2018) 19 Cal.App.5th 1006 (superseded). Humphrey held that before bail is set, a person is entitled to a hearing on his or her ability to pay and whether any non-financial conditions of release would be satisfactory to ensure that person’s return to court and the community’s public safety.In re Humphrey (2018) 19 Cal.App.5th 1006 (superseded). Humphrey prohibited judges from setting bail beyond a person’s reach as a way of detaining people without explicitly declining to set bail.In re Humphrey (2018) 19 Cal.App.5th 1006 (superseded). Eleventh-hour amendments to SB 10—in response to Humphrey—expanded the types of cases eligible for preventive detention and broadened judicial discretion to impose it, resulting in many groups withdrawing their support.VanSickle, “So Much for The Great California Bail Celebration,” 2018. (California’s Supreme Court, the highest court in the state, decided to review a different part of the Humphrey ruling in May.In re Humphrey, No. S247278 (Cal. 2018); and Bob Egelko and Evan Sernoffsky, “State Supreme Court to Review Landmark Case on Money Bail System,” San Francisco Chronicle, May 23, 2018. A decision is still pending.)

Human Rights Watch also criticized the new law’s reliance on risk assessment tools, stating that SB 10 “replaces one harmful system with another.”Human Rights Watch, “Human Rights Watch Opposes California Senate Bill 10, the California Bail Reform Act,” August 14, 2018. Both Essie Justice Group and Silicon Valley De-Bug, two original sponsors of the bill, published statements of opposition to the final version of SB 10.Essie Justice Group, “Essie Justice Group Withdraws Support for SB 10,” August 14, 2018; and Silicon Valley De-Bug, “Silicon Valley De-Bug's Letter of Opposition to California's False Bail Reform Bill (SB10),” August 14, 2018. Shortly after SB 10’s passage, the California bail bond industry launched efforts to establish a referendum in support of repealing SB 10 and posing the question of bail reform to California voters in 2020.American Bail Coalition, “Coalition Launches Referendum Drive to Protect Public Safety and Ensure Fairness in Bail System by Giving Voters Final Say on the Reckless SB 10 Bail Scheme,” press release (Franklinville, NJ: American Bail Coalition, August 2018). While the vote on the referendum is pending, implementation of SB 10—slated to go into effect October 1, 2019—will be on hold.Jazmine Ulloa, “Bail Bond Industry Moves to Block Sweeping California Law, Submitting Signatures for a 2020 Ballot Referendum,” Los Angeles Times, November 20, 2018.