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Why The ACLU Opposes California's Decision To Eliminate Cash Bail


California is the first state now to abolish cash bail. It's going to give judges discretion to decide who can go home and who has to stay in jail while they await trial. Governor Jerry Brown signed the law last night after criminal justice reform groups spent years working to overhaul the cash bail system, saying it favors the wealthy and punishes the poor while crowding jails with those who have not been convicted of actual crimes yet.

But the law underwent some changes before it was signed and lost the support of groups like the ACLU and Human Rights Watch. They say the new system might actually make things worse. Here to talk to us about it is Udi Ofer. He's the deputy national political director of the ACLU and the director of the ACLU's Campaign for Smart Justice. Welcome.

UDI OFER: Thank you. It's good to be on.

CHANG: So first explain what was the problem with the cash bail system that this law was intended to address.

OFER: Yeah, so look; every day in California, like in the rest of the nation, people who have not been convicted of a crime are incarcerated pretrial oftentimes because they're too poor to afford cash bail. So this has created a massive system of pretrial detention.

CHANG: And a lot of these cases, we're talking about very low-level crimes.

OFER: That's right. And people are separated from their families, their jobs, their schools and their communities. When people hear about the problem of mass incarceration in the United States, this is it.

CHANG: So California tries to address this problem, but the ACLU has opposed this new law that Governor Brown has signed. Why is that? What is the problem with this new law?

OFER: So what Governor Brown and the California Legislature did was to eliminate this cash bail industry in the state of California, so no longer will people be jailed for the sole reason that they cannot afford cash bail. And that's a good thing.

CHANG: Right.

OFER: And we commend the governor for that.


OFER: But the problem that we have with the law is that it replaces this current system with another system that could be even worse, lead to an increase in pretrial detention and that gives way too much power to judges and to prosecutors without unnecessary oversight.

CHANG: How would it increase pretrial detention?

OFER: So the new law passed in California creates broad new categories of people who will now be presumed to be subjected to pretrial incarceration - so for example, anyone arrested and charged with a robbery or any felony where there was just a threat of violence even if no actual violence took place.

CHANG: And what kind of factors would the judge consider to make those people remain in jail?

OFER: You know, there's a whole industry out there of people who are creating these essentially algorithms that take a bunch of factors into consideration and then pop out a number that tells law enforcement or a judge what risk you are - so an algorithm that would take into consideration past arrests even if there hasn't been a conviction. We know that communities of color are over-policed and come in contact with the criminal justice system much more frequently. If you now build an algorithm that gives you a worse score on a risk assessment because you have been arrested before, then that perpetuates racial bias in the criminal justice system.

CHANG: So if you have a problem with sort of the numerical or computer-generated risk assessments and you also don't like unlimited personal discretion from judges when they assess risk, what would be the program that you would design that could perfectly capture what flight risk a particular defendant poses?

OFER: Yeah, look; we are OK with judges making individualized decisions. What we're not OK with is the standard that is currently before them that just has general categories like public safety. If there is evidence that's presented before a judge in an adversarial hearing that shows that this person has, let's say, skipped court, then, yes, it is reasonable in those situations for a judge to say the risk is too great. But the vast, vast, vast majority of cases that we're dealing with are not those situations.

CHANG: Udi Ofer is deputy national political director of the ACLU and director of the ACLU's Campaign for Smart Justice. Thank you very much.

OFER: Great, thank you.

(SOUNDBITE OF FRESH CODE'S "SHINE") Transcript provided by NPR, Copyright NPR.