Press Releases

Governor Approves Hertzberg Bill to Improve Pretrial Practices

SB 36 will create transparency and accountability standards for risk assessment tools used in pretrial decision-making

October 9, 2019

SACRAMENTO – Senate Majority Leader Bob Hertzberg (D-Van Nuys) today announced that SB 36, his bill to regulate the use of pretrial risk assessment tools, was signed by Governor Gavin Newsom.

In recent years, California has led the nation in adopting new tools and processes aimed at making the pretrial justice system fairer for the accused in the period between when they are charged with a crime and when they are brought to trial.

In 2017, the Pretrial Detention Reform Workgroup Report commissioned by Chief Justice Tani Cantil-Sakauye reported that as many as 49 counties in California use one of eight different risk assessment instruments in their pretrial processes. This year’s state budget also established a pilot program for updated pretrial practices in select counties.

However, under current law there are no minimum standards governing the effective use of risk assessment tools, and no safeguards in place to ensure that they are being used in a way that accurately estimates risk while minimizing bias.

SB 36 will establish guidelines regarding the use of risk assessment tools, including data collection, transparency requirements, and regular validation of the tools.

“When it comes to the way we handle the accused before trial, California is simply failing. We can do better, and we must do better,” said Senator Hertzberg. “I thank the Governor for working with us to ensure that risk assessments are being used in a way that accurately estimates risk without disproportionately affecting communities that have already been so impacted by the criminal justice system."

The bill was joint authored by Senator Holly J. Mitchell (D-Los Angeles) and sponsored by a coalition of organizations:

“Being able to address racial biases in the pretrial system is key to bringing more transparency and equity to this process that we know is most damaging to communities of color,” said Derick Morgan, Policy Associate with the Ella Baker Center for Human Rights. "This is one step to mitigate the racial disparities within mass incarceration.”

“Money bail is unjust and unconstitutional and California’s justice system is failing us by allowing it to continue,” said Jessica Bartholow of the Western Center on Law and Poverty. “We are proud to support efforts to end money bail, but know that replacing it with a process that uses algorithms to determine whether a person is eligible for pre-trial release leaves the system vulnerable to racism, classism and ableism. SB 36 is an important next step to de-incarcerating people prior to their determination of guilt and to making sure with do this without bias impacting the outcome. We are grateful for its signature.”

“Accountability and transparency are key to effective public policy in the justice system,” said Jay Jordan, Executive Director of Californians for Safety and Justice. “SB 36 will help ensure this accountability exists for the use of pre-trial risk assessment tools in California. Lawmakers made a commitment to safeguard against the potential bias and disparate impacts of these technologies, and the passage of this law is a demonstrable fulfillment of that pledge. We want to thank Sen. Hertzberg for his leadership on this issue and Gov. Newsom for continuing California on a path toward equity, justice and safety.” 

“SB 36 helps to protect the integrity of our judicial process by ensuring a higher standard of accountability for pretrial risk assessment tools and minimizes the possibility of unjust detention of individuals based on race, ethnicity or economic status,” remarked Arnold Sowell Jr., Executive Director of NextGen California. “We congratulate Sen. Hertzberg for championing this issue and thank Gov. Newsom for joining us in the pursuit of a fair and equitable judicial process in California.”

“SEIU members live and work in communities torn apart by racism and injustice in the legal system," said Jasmine Noble, an IHSS provider with SEIU Local 2015. "SB 36 is a step forward in our fight for a system of justice that treats all people equally - whether we are white, Black, brown or Asian.”

Media Contact: Katie Hanzlik
Press Secretary
Senator Robert M. Hertzberg
Capitol Building, Room 313
(916) 651-4018