Appointed to replace newly elected U.S. Sen. Kamala Harris in 2016, California Attorney General Xavier Becerra ran for his own four-year term in 2018 as a supporter of then-Gov. Jerry Brown’s law enforcement and judicial reforms. “California’s Department of Justice has modernized its police force, sponsored state legislation to require an assessment of 2015 and 2016 data related to officer-involved shootings and has explored options for bail reform,” his campaign web page declared. After winning, Becerra made similar claims in a speech at Stanford University.

But to the surprise of many Democrats, the former 12-term congressman has also emerged this year as a persistent, unexpected obstacle to a reform measure that Brown signed before he left office.

Senate Bill 1421, by Sen. Nancy Skinner, D-Berkeley, requires law enforcement agencies to release discipline records related to officers’ excessive use of force, sexual misconduct and dishonest actions. It replaced a previous collection of state laws and court rulings that made it close to impossible for the public to learn about sustained allegations against peace officers.

But even before it took effect on Jan. 1, dozens of police agencies attempted to undercut the law by saying it didn’t apply to misconduct before Jan. 1. Skinner and the legislative record showed that it was her clear intent to make all discipline records that departments had to legally retain available through public record requests.

CHP has produced no records on 7,000-plus officers

Becerra never supported this interpretation of SB 1421. But he initially declined to issue discipline records of state Department of Justice employees on the grounds that the question of the law’s effective date was being reviewed by state courts. Other law enforcement agencies began releasing their own records months before Becerra’s agency starting doing so following a May court ruling by San Francisco Superior Court Judge Richard Ulmer.

Meanwhile, by far the largest state police agency – the California Highway Patrol, which has more than 7,300 sworn officers – had released no records as of June 30, according to the Los Angeles Times. This prompted a complaint from Skinner. “If the state agencies themselves are acting like they’re above the law, that’s absolutely the wrong model and the wrong example to set for the rest of the local government agencies up and down the state,” she told the Times.

Becerra is also appealing part of Ulmer’s May ruling requiring his agency to hand over discipline records it has involving local officers. He wants to limit the parameters of SB 1421 so it only covers the discipline records of officers possessed by their employers. Becerra’s position is that this could lead to the undermining of agencies investigating their officers and potentially lead to the release of incorrect information. 

His department also says the language in Skinner’s bill “focused on an employer’s records about its employees” – not such records in the possession of another agency. But Ulmer didn’t go along with this interpretation. 

Last Friday, an appellate court sided with the judge’s decision and rejected Becerra’s challenge on a preliminary basis. But it set a hearing on July 18 to hear further testimony in the case.

The 2017 session of the California Legislature may be remembered as when the criminal justice reform movement in America’s largest state lost its momentum.

The movement entered the session with a head of steam after winning majority support from the Legislature and then the public for Proposition 47 in 2014 and for Proposition 57 in 2016. The former measure reclassified dozens of “nonviolent” and “nonserious” offenses from felonies to misdemeanors. The latter made it easier for nonviolent felons to win parole.

This year, the same rationale that civil liberties groups, progressive think tanks and minority organizations offered for Propositions 47 and 57 was invoked in seeking sweeping statewide bail reform and a pilot program allowing drug addicts to inject themselves in safe settings in several cities and counties. That rationale: California’s criminal justice system is not only far too punitive, it focuses too much on punishment and not enough on rehabilitation.

State Sen. Bob Hertzberg, D-Van Nuys, and Assemblyman Rob Bonta, D-Oakland, led the push for putting sharp limits on the state’s money bail system in favor of a system that largely trusted suspects without serious criminal histories to not go on the lam. They argued that California’s highest-in-the-nation bail requirements were unnecessary to get the accused to show up for trial and had the effect of destroying lives of suspects by forcing them to spend months in jail, unable to post 10 percent of their bail and secure a guarantee from a bail bondsman.

The fact that more than half the people in state jails are there not because they had been convicted of crimes but because they can’t post bail resonated not just with those who saw bail laws as unfair but with those who saw the system as wildly expensive.

This prompted optimism from Hertzberg in an interview with the Los Angeles Times before the 2017 session began: “Now you have a whole host of groups on both sides of the aisle looking at the cost and fairness of the system,” he said.

But the high point for the reform push came on May 31, when Hertzberg’s SB10 passed the Senate 26-11. A day later, the Assembly rejected AB42, Bonta’s identical bill, on a 35-37 vote.

Supporters of the measures expressed frustration that the governor waited until late August to offer support – and then only with the proviso that the bills be taken up in 2018, not in the closing days of the 2017 session. But it’s an open question whether Brown could have muscled the measures to passage. While other local and state governments have reported success with bail reform, Maryland’s adoption of no-cash bail reform last year has won wide attention for its troubled start. The Washington Post reported in July that the number of trial no-shows had more than doubled under the new system.

No to ‘government-sanctioned drug dens’

The other proposed reform made similar halting progress before being put aside for possible reconsideration in 2018. AB186 by Susan Talamantes Eggman, D-Stockton, would have established safe areas in a handful of cities and counties for drug users to inject themselves without fear of being charged with crimes, among several provisions. Drug law reformers argued that this would reduce the carnage from the opioid crisis by making it easier to treat overdoses and by getting addicts in touch with health care professionals. The program would lapse in 2022.

But law enforcement groups voiced sweeping objections to the law, saying it would create “government-sanctioned drug dens with no requirement that participants enter treatment,” in the words of a state Senate analysis, among many criticisms.

The bill passed the Assembly on June 1 with 21 votes – the bare minimum for approval – before being rejected by the Senate on Sept. 12 after gaining only 17 of the needed 21 votes.

The same coalition of Democratic lawmakers and interest groups that worked with Gov. Jerry Brown on Propositions 47 and 57 — which lessen the amount of time convicts must spend behind bars for relatively minor crimes and make it easier for convicts to gain parole, respectively — have a new target: the state’s harsh bail laws.

Brown has yet to sign on to the campaign led by state Sen. Bob Hertzberg, D-Van Nuys, and Assemblyman Rob Bonta, D-Oakland. But given that Hertzberg and Bonta’s main arguments have echoes of the arguments made on behalf of Propositions 47 and 57, it may be just a matter of time.

They are highly critical of California’s bail laws, which require suspects to post an average bail of $50,000 — more than five times the national median — before they can be released. In a state with the nation’s highest rate of poverty, these rules are so punitive that they routinely ruin suspects’ lives, Hertzberg and Bonta contend. Unable to afford bail, suspects languish in local jails until their trials start, losing their jobs and their ability to take care of their families, who sometimes lose their housing as a result — even if the suspects are never convicted of crimes.

Hertzberg says he’s finding GOP support for his interest in lowering bail rates. Perhaps his best tool in swaying tough-on-crime Republicans is the evidence that states with much lower, less punitive bail amounts do not have any trouble getting criminal suspects to come to their trials. If California adopted reforms and “risk-assessment” evaluations of the sorts used in Kentucky and New Jersey, Golden State taxpayers could save hundreds of millions of dollars.

A Public Policy Institute of California study backs up these theories. According to the PPIC, in 2014, 50,000 of the 80,000 people held daily in local jails in the state were there because they couldn’t make bail. A key PPIC conclusion: “California’s high rates of pretrial detention have not been associated with lower rates of failure to appear or lower levels of felony rearrests.”

Bail bond industry has fended off previous reform pushes

Given the heavy costs of incarceration, excessive and unnecessary bail would seem to have been low-hanging fruit both for criminal justice reformers and opponents of government waste during the budget wars seen during California’s revenue recession from 2008-2012. But the bail bond industry — with annual state revenue of $2 billion — has fought off reform with heavy lobbying, campaign donations and warnings of the risk to public safety if bail laws are weakened.

This could change in the 2017 session. “Now you have a whole host of groups on both sides of the aisle looking at the cost and fairness of the system,” Hertzberg told the Los Angeles Times.

There is also the possibility that changes in California bail laws could be demanded by state judges. The Equal Justice Under Law group is suing the cities of San Francisco and Sacramento over what the group calls unconstitutional bail policies that create two separate and unequal types of justice systems — a reasonable one for middle-income and wealthy families and a brutally harsh one for poor people.

At a state insurance commission hearing last month, state Insurance Commissioner Dave Jones praised Equal Justice Under Law for raising the issue.

“We shouldn’t have a system where your detention is based on your income. There are allegations that that’s the system we have,” Jones said, according to San Francisco TV station KPIX-5.