Bail industry hides stance on Prop. 25
It created measure, works behind scenes to defeat it
Proposition 25, one of the most hotly contested issues on the Nov. 3 ballot, would abolish cash bail statewide, allow tens of thousands of lowlevel defendants to remain free while awaiting trial, and require judges, with computer assistance, to decide whether others charged with crimes can be released safely.
The reason it is on the ballot — intervention by the bail bond industry, whose survival in California is at stake — has virtually disappeared from public view.
After the Legislature and thenGov. Jerry Brown approved the nobail law, SB10, in 2018, with an effective date of October 2019, bail bond
companies and their insurers spent more than $3 million to collect signatures and qualify a referendum for the ballot, putting the law on hold until voters decide whether to approve it. As of Aug. 24, according to the secretary of state’s office, the American Bail Coalition had raised $6.5 million to defeat Prop. 25, while supporters of the measure had raised $6.8 million.
But the No on Prop 25 campaign does not mention the bail bond industry or its interests in its ballot statements or other campaign arguments, which focus on issues of public safety and civil rights — a contention that eliminating cash bail, and substituting computerized risk assessments, would increase pretrial confinement of racial minorities.
In the state ballot pamphlet that all voters receive, Alice Huffman, president of the California State Conference of the NAACP, is the lead speaker for the opponents: “Computer models may be good for recommending songs and movies, but using these profiling methods to decide who gets released from jail or who gets a loan has been proven to hurt communities of color.” No on 25 also quotes law enforcement and crime victims’ groups, but no one from the bail industry.
That’s no accident, say advocates of the ballot measure.
“It is a calculated move by the bail industry, which people see as predatory and unfair, to make themselves as invisible as possible,” said Jonathan Underland, spokesman for Yes on Prop 25.
No on Prop 25 spokesman Mike Gatto, a former Democratic assemblyman, said the campaign has not tried to conceal the sources of its funding.
In its ballot arguments, the opposition campaign said the current bail system “provides justice by ensuring people accused of a crime appear for trial and holds defendants accountable for their actions if they don’t.”
But according to the Yes on Prop 25 campaign, currently “the rich can go free, even when accused of serious violent crimes, while the poor stay in jail.”
While other states have limited their bail requirements in recent years, Prop. 25 would make California the first state to abolish cash bail.
As of June 30, according to the Board of State and Community Corrections, county jails in California held about 61,000 inmates, of whom more than 43,000, or 71% of the total, had not been sentenced for a crime.
Some were charged with serious, nobail offenses, but most inmates were being held because they could not afford bail, or the nonrefundable, 10% fees charged by bail bond companies — fees that totaled $560 million statewide in 2018, according to a state report.
Under the new system, people arrested for nonviolent misdemeanors, like smallscale shoplifting, would be released within 12 hours and remain free until trial. Currently, they can be held for at least two days, or longer if found potentially dangerous. That provision would affect 142,500 people a year, according to the Public Policy Institute of California.
Those charged with capital crimes would be ineligible for pretrial release, as would people accused of domestic violence, defendants with recent serious or violent felony convictions and those who had repeatedly failed to appear in court after being granted bail in the past.
All others would be held for up to 36 hours while a judge examined their record and decided whether they should be released without conditions, freed with supervision and conditions such as drug testing or held until trial.
Those assessments are the source of the civil rights debate.
In most California counties, judges are already using computer programs to measure the potential risk some defendants would pose if released. The programs consider such factors as a defendant’s criminal record, work history, housing, community ties and drug use — “data reflecting structural racism” that could result in bias against racial minorities, the Pretrial Justice Institute, a nonprofit that supports abolishing bail, reported in February.
Equal Justice Under Law, an initial sponsor of the bailrepeal legislation, has come out against Prop. 25 because of its potential racial impact.
“We need to eliminate money bail and the harmful bail industry, but there are much, much better ways of doing so,” said the group’s executive director, Phil Telfeyan.
The American Civil
Liberties Union, which endorsed early versions of SB10, is neutral on Prop. 25.
But supporters of the ballot measure cite a followup law, SB36, that requires counties to examine their risk assessments at least once every three years to determine their accuracy and any adverse impact based on gender, race or ethnicity. The state Judicial Council will oversee the process to root out any bias, said John Bauters of the advocacy group Californians for Safety and Justice, a spokesman for the campaign.
Currently, “Black and brown families typically have to expend exorbitant amounts to bail out family members,” Bauters said.
Prop. 25’s backers include the Western Center on Law and Poverty, the League of Women Voters and the AntiRecidivism Coalition, a group of former inmates and their supporters, along with the California Democratic Party and leading Democratic legislators. Opponents include the state NAACP, the Business Roundtable, the Black and Hispanic chambers of commerce, crime victims’ groups and the California Peace Officers Association.