Proposition 25 Would End Cash Bail. So Why Are Some Progressive Groups Against It?

When California lawmakers began debating whether to reform the state’s cash bail system more than three years ago, progressive groups supported the change.

But the compromise legislation that emerged following more than a year of debate in the state Capitol splintered the coalition on the left. Now, state voters are being asked whether to uphold that law — Senate Bill 10 — after the bail industry gathered enough signatures to put a referendum on it on this November's ballot.

If passed, Proposition 25 would let SB 10 take effect — ending cash bail as a way for people accused of a crime to secure their release before a trial. But in a strange twist, some progressive civil rights groups are siding with the bail industry and law enforcement to effectively keep bail in place.

They worry that the new law will result in more, not fewer, people being kept behind bars as they await trial.

“I can't predict what will happen, but I can say that the system they've set up is going to allow for expanded incarceration and expanded pretrial supervision including electronic monitoring, all of which is going to lead to more incarceration,” said John Raphling, a researcher for Human Rights Watch in Los Angeles.

Raphling wants voters to reject Proposition 25. Since the ballot measure is a referendum on SB 10, which was signed by then-Gov. Jerry Brown in 2018 — a "yes" vote will allow the legislation to take effect and a "no" vote would overturn the law. Under state law, a referendum puts a new law on hold until voters can weigh in — meaning the 2018 law never went into effect. If Proposition 25 passes, California would become the first state in the nation to completely outlaw money bail.

Proposition 25’s backers say Raphling and other opponents are wrong, and that the measure will actually lead to fewer people being held in jail pretrial, and make the system more fair.

John Bauters, budget advocacy director for the criminal justice reform group Californians for Safety and Justice, pointed to a study by the Public Policy Institute of California which found that the change would result in more than 142,000 people each year spending less time in jail.

Bauters said the new system that would be set up under Proposition 25 would ensure that people don’t lose their jobs, their homes or custody of their kids while they languish in jail.

“There's tons of statistics and data about how people who are held pretrial are more likely to plead guilty to things they didn't commit,” he said. “People who are released pretrial actually get a more pure form of justice.”

What Does the Law Do?

The 2018 bill, SB 10, made money bail illegal in California.

If voters decide to uphold SB 10 by passing Proposition 25, the state would replace bail with a system that generally requires people arrested for misdemeanors to be automatically let go before trial — and for those accused of violent felonies to be kept in jail.

Those accused of lower-level felonies would go before a judge who could keep them in jail or put conditions on their release. Those conditions could include things like mandatory drug treatment, or a weekly probation check-in. The judge’s decision would in part be based on the results of a risk assessment tool that would essentially measure a person’s likelihood of re-offending or skipping out on court.

Each county would have to adopt their own risk assessment tool.

Those tools — based on algorithms that 'learn' more about risk profiles as more data about criminal defendants is entered into them — have become one of the flash points for those opposed to the bail law and Proposition 25.

Too Much Power for Algorithms and Judges?

Raphling, for example, warns that these risk assessment tools could be biased or misleading themselves, noting that someone’s risk of being rearrested can be as much about policing decisions and the color of their skin as that person’s actual conduct.

What Proposition 25 does, he said, is make these algorithms “the gatekeeper” to someone’s freedom before trial. And even more concerning, he and other opponents say, is that the entire system gives judges way too much power to decide who leaves and who stays in jail before a trial.

"If you're low risk, then (under Prop. 25) you're likely to get out — but the judges can always override any decision of risk assessment,” he said. “In my research, I've found that they overwhelmingly override in favor of locking people up ... and there's real questions about the accuracy of those (risk assessments)."

Insha Rahman, a former public defender who is now vice president of advocacy and initiatives at the Vera Institute of Justice in New York, agrees. She said there’s no reason to think that judges would behave differently because Proposition 25 still gives them the power to hold people in jail.

"When it comes to public safety, across the board, we tend to just use our discretion to detain. That's what the system has historically done," she said.

Decreasing Racial Bias?

But Santa Barbara Probation Chief Tanja Heitman, whose county has been experimenting with alternatives to money bail, said she believes risk assessments can actually help reduce racial disparities.

“I will never suggest that risk assessments are perfect. They are an evolving science and they continue to improve,’ she said. “As long as there's over-policing in communities of color, as long as there is those inherent disparities in access to health care and educational employment opportunities, there's going to be disparities in arrest rates that are then going to impact the criminal justice system.”

But in Santa Barbara County, she said, she has seen the risk assessments help erase racial biases in the juvenile criminal justice system. Youths of color are 2.6 times more likely to get arrested by law enforcement than white juveniles, she said; but their release rates were identical. The disparities among races reemerged when it came to charging decisions by prosecutors, she said.

“I think probation officers are just as likely to allow biases unintentionally to creep into their decision making if they don't have an assessment tool to help guide them, if they don't have an assessment tool to ground to them,” she said.

While many police and prosecutors groups oppose Proposition 25, Heitman and other probation officials believe it will make communities safer.

“We know that money bail doesn't make us safe, but allowing people to stay connected to their families, to continue working (while they await trial) — that's what's going to enable them to be successful and improve our community overall,” she said.

Raphling, however, points out that Heitman and other probation departments have an incentive to support Proposition 25: They will gain power and funding because their responsibilities will be expanded to include more pretrial defendants under the measure.

The bail industry is funding the opposition. But Raphling said his opposition to Proposition 25 doesn’t mean he and others support that industry.

“The bail bond industry is a parasite. They are bloodsuckers. But the blood wouldn't be available to them if it wasn't for judges and law enforcement,” he said.

If voters reject Proposition 25 — and with it, the 2018 law — supporters believe that state lawmakers would be prohibited from taking up the question of completely eliminating bail again, ensuring that the industry will continue to operate in California.

But Raphling and others say the Legislature could still come up with an alternative system that would sideline the money bail industry without outlawing it altogether.