California Could End Cash Bail. But is This Alternative Any Better?

Proposition 25 would replace the current system with an even more punitive one, some criminal justice reform groups say.

Lauren Lee White | October 21, 2020

Voting in San Diego (Photo by queentv/Flickr under CC license)

This article originally appeared on The Appeal, which hosted The Political Report project.

Proposition 25 would replace the current system with an even more punitive one, some criminal justice reform groups say.

In California, voters are considering a ballot measure that would eliminate cash bail. But groups that have long fought to reform the criminal legal system are divided on the issue because of what could come next.

If Proposition 25 passes in November, California will become the first state in the nation to abolish cash bail, a longtime goal of criminal justice reform advocates who say its use results in disproportionate numbers of poor people and people of color languishing in jail because they can’t afford to pay their way out.

But some of the groups that have pushed to do away with cash bail are opposing Prop 25 on the grounds that it would replace the current system with an algorithm-driven risk assessment that they say would be even more punitive.

The plan “fundamentally betrays the stated principles of the reform movement,” John Raphling, a senior researcher on criminal justice for Human Rights Watch, told The Appeal: Political Report.

Meanwhile, some advocates who share this concern are nevertheless backing Prop 25 because they say achieving a better alternative will be harder if it fails; they believe it would vindicate the bail bond industry, which is spending millions to keep cash bail intact.

”We understand that this is a marathon and not a sprint,” said Sam Lewis, executive director of the Anti-Recidivism Coalition, which supports Prop 25. “So we’re going to push to make this legislation right.”

The origins of Prop 25 lie in a bail reform bill known as Senate Bill 10 that California lawmakers introduced in December 2016. Initially, it had the support of Essie Justice Group, Human Rights Watch, ACLU SoCal, Equal Justice Under Law, and other groups that had fought to bring the issue of cash bail to legislators’ attention.

But in July 2017, the bill’s co-authors, state Senator Robert Hertzberg and Assembly member Rob Bonta, released a modified version.

According to Raphling, it wasn’t just a question of a few minor amendments. Lawmakers changed the bill to “something entirely different … something horrible,” he said.

The original SB 10 would have mandated the pretrial release of most people charged with nonviolent crimes and established pretrial service agencies. These agencies would work independently to recommend conditions for release and support people with the resources they need to show up for court dates and avoid breaking the law in the meantime.

By contrast, the final version of SB 10 required all counties to adopt a risk assessment tool that judges would use to decide whether to grant release. These tools, which would vary from county to county, would crunch demographic data—which can include age, housing stability, education level, and arrest history—to produce a numeric score for judges to take into account, though they would have the power to override that score at their discretion.

Phil Telfeyan, executive director of Equal Justice Under Law, told the Political Report that this runs counter to the presumption that people can be released before trial if they meet certain conditions—like paying bail or, in a world without cash bail, participating in pretrial services.

“What happened with SB 10 is it flips that presumption,” Telfeyan said. “It gives the judges the authority to detain in any case where they believe detention is warranted … It’s expanding the carceral state.”

Advocates also say that risk assessment tools use data that is skewed by—and likely to reproduce—racial disparities. Concerns about these tools ultimately led Equal Justice Under Law and other advocacy groups to retract their support.

In August of 2018, Governor Jerry Brown signed SB 10 into law, but before it could go into effect, the bail industry mobilized to overturn it through a referendum. Now Proposition 25 asks voters whether to uphold SB 10 with a yes vote or reject it by voting no.

As before, much of the debate centers on the issues of risk assessment tools and judicial discretion.

Criminal justice reform advocates who oppose Prop 25 say that the data fed into risk assessment algorithms is the result of a structurally racist policing system. Because Black, Latinx, and low-income communities have a greater police presence than white or affluent areas, people from these communities are more likely to have a criminal record, which in turn increases their risk score.

Bonta, who co-authored SB 10 and supports Prop 25, concedes this point. “We know that law enforcement and our system has over-arrested certain communities and has overcharged certain communities,” he told the Political Report.

But Bonta believes there are enough safeguards in place to ensure oversight of the risk assessment algorithm. A companion bill, SB 36, requires that each jurisdiction’s algorithm make “validation studies” publicly available at least every three years.

“[The risk assessment tool] deserves to be reviewed, it deserves to be sunlit and daylit and provided with accountability and oversight to see if there are disparate impacts based on race and to take steps to fix them,” said Bonta.

When it comes to judges overriding the risk assessment to detain people, Bonta isn’t concerned.

“They take an oath. They have a duty. They have a role in the system, and they have guardrails from the bill to keep them focused on safe release and to really meet a high burden if they're going to hold somebody,” he said.

But Prop 25 opponents don’t share Bonta’s faith in the courts, especially in the midst of the most prolonged and robust protest against law enforcement in a generation.

Pete White, executive director of the Los Angeles Community Action Network, said that voters are skeptical of the message that they should “Just trust the judge. Just trust risk assessments, don’t worry. Just trust the probation department. So we're asking people, can you just trust these parts of the system? And of course, everyone is saying no.”

While criminal justice reform advocates largely share the same concerns about Prop 25, those who support it say that it’s an imperfect but necessary jumping-off point for bail reform.

“I would actually like to have it where there is no assessment tool,” said Lewis, of the Anti-Recidivism Coalition. “Can we find that solution? Yes, we can, but we have to have a base to begin with.”

But others reject the notion that assessment tools could be a starting point for better reforms, in part because they see the potential for big tech companies to replace the bail industry in profiting from and fighting to maintain an exploitive system.

“There's a hell of a lot of money coming from the tech [industry], because they know our bodies are a currency that's too rich to let go of,” White said.

John Arnold, a former Enron trader whose philanthropic organization developed proprietary risk assessment software already in use in a few California counties, has donated $5 million to Yes on 25, making him one of the campaign’s top donors. Arnold's PAC, Action Now, contributed an additional $500,000.

Entities affiliated with Steve Ballmer, the former CEO of Microsoft, and his wife Connie have donated a combined $6 million to the campaign. The Ballmers co-founded an organization that focuses on increasing economic mobility for people in poverty, and have given millions of dollars to related causes. (The Appeal is a project of The Justice Collaborative, which has received funding from The Ballmer Group.)

Either outcome will indelibly shape California’s criminal legal system, and advocates on every side of the Prop 25 debate see the referendum as a decisive moment for reform.

“A Yes on 25 means we’ll get this new system and we’ll be stuck with it for a generation at least,” John Raphling said, “until it becomes fashionable again to try and do something.”

Sam Lewis has the same long view, but from another perspective.

“If we don’t end cash bail now,” he said, “I don’t think, in my lifetime, we will.”

This article was supported by the Economic Hardship Reporting Project.

This article has been updated to reflect John Arnold's total contributions to the Yes on 25 campaign, including funding from his PAC, Action Now.