For better or for worse, our court system in general, and the criminal justice system in particular, has become the catch-all for our society’s ills. The results of our society’s failures to effectively address mental health, substance abuse, income disparity, homelessness and lack of affordable housing play out—tragically—every day in our criminal courtrooms. One of those results is an enormous amount of pressure on the individuals who make up the criminal justice system, from police and probation officers to attorneys and social workers to judges and court staff, to make up for these failures and to do the right thing. Doing the right thing involves balancing many competing interests—individual rights and liberties, victim’s rights, societal interests, fairness, due process, to name just a few—without the resources to address issues the system wasn’t designed to address in the first place. Criminal justice reform is in the news nationwide because more people are recognizing that we can and we must do better. Public safety and the rights of the accused are both suffering.

Starting with the passage of Assembly Bill 109 in 2011, which “realigned” the criminal justice system, California voters and the Legislature have recognized and attempted to alter the unsustainable path of criminal punishment in California. The purpose of these reforms is to more effectively address public safety and reduce recidivism, emphasizing better allocation of resources and greater focus on reintegrating offenders back into society.

2014’s Proposition 47 continued the path of reform by classifying “non-serious, non-violent crimes" as misdemeanors instead of felonies. Proposition 57, passed in 2016, reduced sentences, increased the availability of parole and limited juvenile prosecutions. Also passed in 2016 was Proposition 64, which more or less decriminalized marijuana. In 2018, the Legislature passed multiple major criminal justice reforms. Senate bills 439 and 1391 excluded children under the age of 12 from criminal prosecution and prohibited 14- and 15-year-olds from being tried as adults. SB 1437 limited the charge of felony murder to someone who was at least a major participant in the crime who acted with reckless indifference to human life. SB 10 ended the use of cash bail in California and instead requires evaluation of arrested individuals for their threat to public safety and risk of failure to appear in court with a “risk assessment tool.” At the federal level, the Senate voted 87 to 12 to approve the First Step Act, a bipartisan criminal justice reform bill, one of the only recent bipartisan bills. Clearly, many believe that our criminal justice system is unsustainable and must be reformed.

The elimination of cash bail is one of the more controversial efforts to reform the criminal justice system and on April 24th, 2019, MCBA hosted a forum on bail reform. The question whether or not cash bail is unconstitutional is currently working its way through the appellate courts and is the subject of an upcoming referendum. Bail reform highlights the competing interests in the criminal justice system: how do we balance income inequality and personal liberty with public safety when it comes to pre-trial release? Our speakers included Marisa Lagos, a reporter for KQED who has covered criminal justice reform for years, supervising Marin County Probation Officer Alisha Krupinksy, Chief Deputy District Attorney Dori Ahana, and local bail bondsman Matt Ramsey. The panelists described the role bail plays in the criminal justice system and discussed how that role is evolving in light of SB 10, court decisions and ballot initiatives. The panelists’ varying viewpoints illustrated the complexity of the bail reform debate and the fascinating politics surrounding the effort to eliminate cash bail. It was especially interesting to hear how the probation department would manage pre-trial release if cash bail is ultimately eliminated (SB 10 is on hold because of the referendum.) The use of risk assessment tools that seek to predict behavior seems problematic in light of recent appellate court decisions questioning the reliance on probabilities and statistics to prove conduct.

Educating our membership on emerging legal issues so that you can better represent your clients and causes is a vital role of MCBA. If you have ideas for other emerging issues impacting the courts, the practice of law, and the fair administration of justice that you would like MCBA to address, please email me directly at