Press Release

Hertzberg Bill to Regulate Pretrial Risk Assessment Tools Clears Senate

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

April 25, 2019

SACRAMENTO – Senate Majority Leader Bob Hertzberg (D-Van Nuys) announced that SB 36, which is joint authored by Senator Holly J. Mitchell (D-Los Angeles) passed the Senate Floor on a 37-0 vote today.

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. However, there are currently 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 would establish guidelines regarding the use of risk assessment tools, including data collection, transparency requirements, and regular validation of the tools.

“This bill is inspired by a national movement focused on reforming our pretrial justice system,” said Senator Hertzberg. “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.”

“Any predictive tool we use, in any part of our lives, is in some way going to use the past to shed light on the future,” said Senator Holly Mitchell, joint author of the measure. “We have a choice: we can give in to our fears and strip system actors of a valuable tool that has the potential to protect individual liberty and public safety, or we can do the hard work of building in safeguards to make sure this tool is used the right way.”

In developing this measure, the authors have worked closely with a group of sponsors that includes the Ella Baker Center for Civil Rights, Californians for Safety and Justice, the Western Center on Law and Poverty, the Anti-Recidivism Coalition, NextGen America, and SEIU California.

"As we move swiftly away from the unjust and unconstitutional money bail system, we should make sure we aren't creating a pre-trial system based on bias against people because of their race or economic status,” said Jessica Bartholow of Western Center on Law and Poverty. “SB 36 does this by establishing state standards for pretrial assessments, and we are proud to sponsor it.”

“Senator Hertzberg’s bill is an important part of the movement to address racial disparities in incarceration," said Emily Harris of Ella Baker Center. "Pretrial release without money bail is a key advance, but there is a lot of work to do to ensure that new systems of evaluation for release or detention are not racially biased in their application.”

The bill next heads to the Assembly.

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