Proposition 25 would end cash bail in California, but is the replacement better?
The bail bonds industry is spending millions to defeat the measure
When the push to eliminate California’s cash bail system began in the state Legislature several years ago, the battle lines were clearly drawn.
On one side were civil rights groups and criminal justice reform advocates arguing that cash bail is unjust because it allows wealthy defendants to buy their way out of jail as they await trial, while poor defendants who are unable to post bond — disproportionately Black and Latinx — wind up stuck behind bars. On the other side, advocates for tougher criminal penalties, as well as the bail bonds industry, insisted looser bail rules could put public safety at risk.
Now as California’s voters decide this November whether or not to scrap cash bail, disagreements over what would replace it have split the coalition that fought long and hard for its end.
If approved, criminal defendants would no longer post a cash bond to get out of jail before trial. Instead, their release would depend on the severity of charges they face and a “risk assessment” meant to determine whether they are likely to commit new crimes or fail to show up for court.
The measure’s supporters say that means defendants who pose little risk to the public won’t be needlessly locked up for months or even years as their cases move through the system because they can’t afford bond. Their families won’t have to fork over huge sums to bail bonds companies to secure their loved ones’ freedom. Those who pose more of a danger would stay in jail.
But Raj Jayadev, a criminal justice reform activist and co-founder of Silicon Valley De-Bug, warns that the risk- assessment algorithms judges would use to determine whether someone can be safely released from jail would only perpetuate racial bias in the courts. It’s a stance that puts groups like Jayadev’s in an uncomfortable position: On the same side as a bail bonds industry he regards as “parasitic,” and that is spending millions to defeat the initiative.
“Are we going to replace money bail with a new system that is also oppressive, and also stripping of liberty, and also fueling incarceration? Or are we going to take the opportunity to imagine something totally different?” Jayadev said. “That’s what we’re fighting for.”
The split could doom a long-held goal of progressive reformers that has made its way into more mainstream plans to overhaul the criminal justice system: Former Vice President Joe Biden has pledged to lead national efforts to eliminate cash bail if he is elected president.
John Bauters, budget advocacy director for the Alliance for Safety and Justice, a group that supports Proposition 25, said concerns about the risk assessments are valid. But they don’t justify rejecting the measure, Bauters said.
“People want a system that promotes safety and justice,” he said, “and the bottom line is that the current system does neither of those things.
“The bail industry is very happy to sit back and be quiet and let people turn it into a debate that it is not,” Bauters said. “The choice is: Should we eliminate the cash bail system?”
Under Proposition 25, most people booked into jail on misdemeanor charges would be released within 12 hours. A report from the nonpartisan Public Policy Institute of California estimated 142,500 misdemeanor defendants would be released from jail more quickly as a result.
People charged with felonies and certain misdemeanor defendants — those accused of domestic violence, stalking or sex crimes, or who have a history of failing to appear in court, among other exceptions — would be held for up to 36 hours while the court conducts a risk assessment that would classify defendants as being a low, medium or high risk for committing new crimes or failing to show up for their court dates.
Those at higher risk would be ineligible for release. Local judges would have substantial discretion to decide which defendants considered lowor medium-risk should be held in jail and which can be released, often with conditions or monitoring.
The PPIC report estimates that about 3,000 felony defendants who might post bail quickly under the current system would have a longer jail stay because of the risk assessment, and may wind up being detained while their case is pending.
Gov. Jerry Brown signed into law a bail reform system ushered in by Senate Bill 10 in 2018, over the objection of Jayadev’s group and others. The bail industry immediately challenged the law, and it has been put on hold pending the outcome of this November’s referendum.
Supporters of cash bail contend that having defendants put money down is the best way to ensure they will show up for their court dates and not commit any new crimes. Attorney and former state Assemblyman Mike Gatto, a spokesman for the No on Prop 25 campaign, predicted the new system would “probably result in a whole lot of people who shouldn’t get out of jail getting out, and it will probably result in a whole lot of people being kept in jail who probably shouldn’t stay in.”
Separate from the ballot measure, local judges have been ordered to consider whether defendants can afford to post bond, or could be released with monitoring, when setting bail amounts. That order is part of a legal challenge to California’s cash bail system mounted by reform advocates in 2017, now under review at the state Supreme Court.
Washington D.C., Kentucky and New Jersey have reduced or eliminated their use of cash bail by relying on risk assessments. A 2018 report from New Jersey’s court system found jail populations fell as a result of the change, while defendants were not significantly more likely to miss court or commit new crimes. Still, critics question whether those new systems are safer or more just than the ones they replaced.
The risk-assessment algorithms that would be used in California if Proposition 25 passes have not been chosen yet, and it will be up to each county to decide which factors to consider. Bauters said there are “guardrails” meant to keep those tools from perpetuating discrimination. Counties would have to be transparent about what criteria they use in their assessments and review them for potential bias every three years.
And activists could keep working with lawmakers to further improve the new pre- trial release system, Bauters said. But that’s only if the measure passes. Lawmakers probably would be reluctant to take the issue back up if it fails, he said, while the bail bonds industry could point to the failed referendum as proof voters want to keep the cash bail system in place.
“The Legislature is going to say, ‘ Voters do not want us to do bail reform,’” Bauters said.
“Are we going to replace money bail with a new system that is also oppressive, and also stripping of liberty, and also fueling incarceration? Or are we going to take the opportunity to imagine something totally different? That’s what we’re fighting for.”
— Raj Jayadev, a criminal justice reform activist and cofounder of Silicon Valley De-Bug