Beyond Cash Bail: Public Health, Risk Assessment, and California Senate Bill 10

Zoe Guttman1, Yuki Hebner2, Kanon Mori3, Jonathan Balk4 1University of California, Los Angeles, Neuroscience Interdepartmental Program, 760 Westwood Plaza, Los Angeles, CA 2University of California, Los Angeles, Molecular Biology Interdepartmental Program, 635 Charles E. Young Dr S, Los Angeles, CA 3University of California, Los Angeles, Department of Molecular, Cellular, and Developmental Biology, 6 10 Charles E Young Dr S, Los Angeles, CA 4University of California, Los Angeles, Department of Mechanical and Aerospace Engineering, 420 Westwood Plaza, Los Angeles, CA http://doi.org/10.38126/JSPG170107 Corresponding Author: zoeguttman@gmail.com

2011; Demuth and Steffensmeier 2004;Jones 2013). People unable to afford bail fall in the poorest third of society and many of those incarcerated fall below the poverty line (Rabuy and Kopf 2016). In California, bail amounts are higher for Black men by 35% and Hispanic men by 19% compared to white men accused of similar crimes (Gelbach and Bushway 2011). Low-income defendants are also disproportionately exposed to profitable exploitation by the commercial bail industry (Appleman 2016;Holland-Stergar et al. 2017; Rabuy and Kopf 2016) (i.e., nonrefundable premiums, interest rates, fines), which has minimal oversight and is not subject to the constitutional restrictions that limit state actions (Johnson and Stevens 2013;Johnson and Warchol 2003).
Pretrial detention detracts from public health and public safety. Imprisonment for as few as three days increases the chance of conviction and future arrest for different crimes (Lowenkamp, VanNostrand, and Holsinger 2013a), especially in individuals suffering from mental illnesses and addictions (Kouyoumdjian et al. 2015;Deitch, Koutsenok, and Ruiz 2000;Prendergast et al. 2004;Caspar and Joukov 2020;Leutwyler, Hubbard, and Zahnd 2017). Detainees awaiting trial face damaging consequences, including loss of employment, schooling, housing, custody of their children, and access to medical care (Rabuy and Kopf 2016;Appleman 2016;Holland-Stergar et al. 2017;Comfort 2016;Stevenson and Mayson 2017). For example, the Medicaid Inmate Exclusion Policy lacks automated reinstatement of Medicaid following release and creates gaps in healthcare coverage that amplify health, social, and financial burdens associated with recidivism (Albertson et al. 2020). Studies suggest that local jails, where most pretrial detainees are held, cause greater negative health outcomes than prisons because they are typically less equipped to provide medical services (Toman, Cochran, and Cochran 2018;Yi, Turney, and Wildeman 2017;Caspar and Joukov 2020). These issues are compounded by the COVID-19 pandemic, as the rate of COVID-19 cases in jails is 5.5x higher than the U.S. population (Saloner et al. 2020).
Pretrial detention also costs California nearly $30 billion per year (Amatya et al. 2017) and increases the severity of sentencing and the likelihood of incarceration, recidivism, and conviction (Dobbie, Goldin, and Yang 2018;Gupta, Hansman, and Frenchman 2016;Lowenkamp, VanNostrand, and Holsinger 2013b;Phillips 2012;Ottone and Scott-Hayward 2018;Heaton, Mayson, and Stevenson 2017;Stevenson 2018b;Lowenkamp, VanNostrand, and Holsinger 2013a;Lum, Ma, and Baiocchi 2017). A detainee is 3-4 times more likely to be sentenced than someone released on bail for the same crime (Lowenkamp, VanNostrand, and Holsinger 2013b), partly because of incentivization to take plea deals to negotiate release (Dobbie, Goldin, and Yang 2018;Ottone and Scott-Hayward 2018;Stevenson 2018b;Heaton, Mayson, and Stevenson 2017 Moreover, support for general bail reform has been growing. A 2018 national survey of 1,400 registered voters showed overwhelming support for pretrial reform, including increased use of citations instead of arrest (76%) and pretrial services for mental health (89%) and substance use (77%) issues(Pretrial Justice Institute 2018). Criminal justice reforms should rely on evidencebased practices that do not compromise public safety, such as greater reliance on pretrial release and restorative diversion and supervision services.

II. Policy options
i. Option 1: Support SB 10 (Vote "Yes" to Proposition 25) SB 10 eliminates monetary bail and adopts "preventive detention" that uses actuarial risk assessment tools to classify defendants into low, medium, and high risk. Those of "low risk" can be immediately released. Otherwise, release versus detainment is determined by local standards and the discretion of judges, prosecutors, county boards of supervisors, and/or pretrial officials. While SB 10 was enacted in 2018, implementation of the legislation was suspended by a veto referendum (Referendum 1856) that will be on the November 2020 ballot as Proposition 25.
Advantages SB 10 would eliminate cash bail, a system contingent on financial capacity that is socioeconomically and racially discriminatory (Gelbach and Bushway 2011;Demuth and Steffensmeier 2004;Jones 2013). Even low bail levels drive incarceration, as median bail remains larger than the savings of a typical American household (Liu, Nunn, and Shambaugh 2018). In California, a 31% reduction in bail would only help 4% of offenders, and even a 90% decrease puts average bail at $5,000, still unaffordable for many (Tafoya 2013). The commercial bail industry is especially harmful towards low-income defendants who can become forced into a cycle of poverty and incarceration (Appleman 2016;Holland-Stergar et al. 2017;Rabuy and Kopf 2016;Johnson and Stevens 2013;Johnson and Warchol 2003). Additionally, this wealth-based system predictably discriminates based on race (Gelbach and Bushway 2011;Demuth and Steffensmeier 2004;Jones 2013). Court officials have broad discretion in decision-making and the likelihood of pretrial release and bail amount is alarmingly arbitrary across judges and locations (Ottone and Scott-Hayward 2018; Barry-Jester 2018; Sheriff's Justice Institute 2016; Hood and Schneider 2019). In theory, actuarial risk assessment tools are more objective and less subject to racial bias.

Disadvantages
Evidence suggests that replacing cash bail with actuarial risk assessment tools, as proposed by SB 10, is insufficient to promote pretrial release and decrease incarceration and may maintain or increase incarceration rates ( ii. Option 2: Oppose SB 10 (Vote "No" to Proposition 25) Voting "No" to Proposition 25 will prevent SB 10 from being passed and result in no change to the current monetary bail system.

Advantages
Analyses of SB 10 reveal that it is unlikely to decrease pretrial detention and will exacerbate racial inequalities perpetuated by the current cash

Option 3: Oppose SB 10 (Vote "No" to Proposition 25) and introduce new legislation
A new bill should be introduced that shifts the focus from detainment to release for misdemeanor/nonviolent defendants. Prior to arraignment, law enforcement and pretrial officers can be given the discretion to release people through citations and diversion programs, which are effective (Ochoa et al. 2019) but underused (Holliday et al. 2020) in places like Los Angeles County. Diversion programs address individual needs like homelessness, addiction, and mental illness by redirecting defendants to the relevant medical and community-based professionals. After meeting court-specified requirements, charges may be dropped and jail time avoided. Decisions about pretrial detainment versus release should be modeled after successful bail reform in other states such as New Jersey (Shalom et al. 2016). Most misdemeanors/nonviolent defenders should be released, either on their own recognizance or in tandem with supervision and pretrial services.
Actuarial risk assessment tools should be designed to aid, not replace, judges in their decision making. These tools can be improved by the use of transparent and uncomplicated models (Zeng, Ustun, and Rudin 2017;Dressel and Farid 2018) and by excluding discriminatory variables that are unpredictive of recidivism, such as socioeconomic status of family of origin (Gendreau, Little, and Goggin 1996). Models can also be trained on local races/ethnicities to increase accuracy and equity (Gasek 2019;Clayton 2018;Mamalian 2011).
Non-invasive supervision and restorative/community-oriented pretrial services, like counseling and skills training, can be provided by agencies independent from the court and probation departments (National Assosiation of Pretrial Services Agencies 2004). increased flexibility for pretrial officers to divert arrests will decrease the burden placed on judges and increases equity (Harris, Goss, and Gumbs 2019;Weaver, Papachristos, and Zanger-Tishler 2019). Diversion programs restore treatment of mental illness and substance abuse to medical professionals, reducing the burden on the criminal justice system and promoting behavioral change. Bail reforms with mandatory release on recognizance in other states have been largely successful (Grant 2019). Studies suggest that common interventions prioritizing discipline and surveillance are ineffective (MacKenzie and Farrington 2015; Bechtel et al. 2017), can elevate incarceration rates through technical violations (Turner, Petersilia, and Deschenes 1992;Hyatt and Barnes 2017), and cause financial strain (i.e., mandatory courses that impede employment, expensive ankle monitors) (Doyle, Bains, and Hopkins 2019).

Advantages
The emphasis should be placed on restorative, community-based interventions shown to be effective and typically more cost-effective (MacKenzie and Farrington 2015; Bechtel et al. 2017;Barnes et al. 2010;County of Santa Clara Bail and Release Work Group 2016;Gasek 2019;Cooke et al. 2018). For example, behavioral nudges, such as text message reminders and transportation to court appearances, effectively and relatively inexpensively increase court appearances (Cooke et al. 2018;Rosenbaum et al. 2011;Schnacke, Jones, and Wilderman 2012;White 2006;Pretrial Justice Institute 2012). Improving pretrial services is projected to create thousands of new jobs and the cost is significantly outweighed by the billions of dollars California would save annually by decreasing pretrial detention (in 2014, an estimated $10 billion with a pretrial detainment rate of 40%, and $20 billion at 10%) (Amatya et al. 2017).

Disadvantages
Such a bill is currently not in place and would take time to develop. Reform efforts could be harmed by a violent crime being committed by an individual awaiting trial.

IV. Policy recommendation We recommend Option 3: Oppose SB 10 (Vote "No" on Proposition 25) and introduce new legislation.
Monetary bail is an ineffective and inefficient public safety measure, but there is converging evidence that SB 10 inadequately addresses the underlying issue of pretrial detention by relying too heavily on actuarial risk assessment tools. These tools are projected to perpetuate racial and socioeconomic discrimination (Angwin et al. 2016;Picard et  We further recommend that policy emphasize longitudinal assessment, stakeholder input, and transparency. Data should be regularly collected along the pretrial pipeline for independent assessment. Public reporting mechanisms exist that compare behavior to objective measures and ensure transparency (i.e., public report cards for surgeons [Kolstad 2013]). Investing in randomized control trials can clarify causal effects of pretrial release, supervision, and pretrial services (Greiner and Maréchal). Frequent reports from longitudinal analyses can also help garner public support.
While most Americans believe mass incarceration to be a problem (American Civil Liberties Union 2017; Clarke 2018; Pretrial Justice Institute 2018), bail reform must address the fear that reducing the jail population threatens community safety. Effectively shifting pretrial standards requires public trust and support, and any strategy should highlight safety statistics from jurisdictions that have successfully implemented reforms without a significant rise in violent crimes or court absences . Transparency and education for the public and relevant actors, including judges and probation officials, may help ease the transition away from detention, build trust in justice and law enforcement agencies, and result in better public health and justice outcomes. Shifting towards release instead of detainment is the only option that ensures equitable treatment and mitigates the health detriments of detainment.