California voters to decide whether to end cash bail system with Proposition 25

A growing national discussion about inequities in the criminal justice system spurred by the Black Lives Matter movement has focused new attention on Proposition 25, a referendum on the November ballot to decide whether California’s money bail system is unjust and should be replaced.

The measure was qualified for the ballot by the bail industry as it attempts to overturn a 2018 state law that would replace the current cash bail system with one allowing pretrial release from jail based on a determination of public safety or a defendant’s flight risk. The law also would restrict pretrial detention for most misdemeanors.

The 2018 law is not yet in effect pending the referendum vote, which comes more than two years after a bitter legislative fight that pitted the multibillion-dollar bail industry, criminal defense attorneys and some civil liberties advocates against Democratic leaders, including then-Gov. Jerry Brown, who signed the law saying it will make sure “rich and poor alike are treated fairly.”

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The bail industry has argued the law would result in the release of violent criminals to the streets and pose an existential threat to its thousands of businesses.

Gov. Gavin Newsom, who also supported the 2018 legislative effort, has endorsed Proposition 25, which will preserve the law if it passes.

“For years, California has proudly led the way on fundamental civil rights and criminal justice reform but, as we’ve witnessed firsthand across our country, there’s more we must do to root out racial inequity and structural bias and to embrace proven reforms that work,” Newsom said in a statement, adding that the new bail law is part of “the unfinished fight for equity and justice.”

A national conversation about long-standing systemic inequities in the criminal justice system picked up in June after the death of George Floyd, a Black man who was killed when a white Minneapolis police officer knelt on his neck.

That broader discussion has brought more attention to California’s proposal to replace the money bail system, said Katharine Tinto, a UC Irvine law professor and director of the school’s Criminal Justice Clinic.

“Money bail is at the heart of the criminal justice system because people who cannot afford to bail out plead guilty to crimes in order to get out, in order to save their job, save their home, save their kids,” Tinto said.

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The topic of abolishing cash bail has also surfaced in the presidential race with former Vice President Joe Biden saying it is an important part of his plans for criminal justice reform.

And the issue was raised again during Black Lives Matter protests over Floyd’s death.

“You saw a lot of people calling for donations to bail funds,” Tinto said. “That was one way to support the Black community, to ensure that [protesters] were bailed out for pending charges.”

In addition to the bail industry, the new law is also opposed by groups including criminal defense attorneys and some civil rights advocates, such as the American Civil Liberties Union of Southern California, which says Proposition 25 replaces money bail “with risk assessment tools that are racially and socioeconomically biased.”

The issue of risk assessments has divided critics of the existing money bail system. During its consideration in the Legislature, the law, Senate Bill 10, was opposed by the California Attorneys for Criminal Justice, which represents criminal defense attorneys.

“SB 10 expands the category of persons who can be held without bail,” said Eric Schweitzer, the association’s president. “If your client is presumed to be unsafe because of a computer algorithm that can’t be trusted, he can’t get out.”

Proposition 25’s opponents also include Human Rights Watch, which has pressed for bail reform but said the law “exchanges money bail for a system that uses racially biased risk assessment tools [and] gives judges nearly unlimited discretion to incarcerate.”

The measure is also opposed by more than two dozen sheriffs in California, including those in Orange, Riverside and San Diego counties. Orange County Sheriff Don Barnes said ending cash bail removes an “important mechanism” for ensuring defendants appear in court.

Barnes cited recent temporary orders eliminating bail for those suspected of some nonviolent crimes in parts of California during the COVID-19 pandemic as an indication that the practice is problematic.

“California’s experiment with zero bail during the pandemic has not been a success,” Barnes said. “In Orange County, 31% of those released on the emergency bail order have committed new crimes, many of them several times.”

“We don’t need to look too far for examples of bad things that could happen if this is implemented,” said former Democratic Assemblyman Mike Gatto, an attorney representing opponents of Proposition 25. “You have these repeat offenders who keep reoffending because there is a message that there are no consequences.”

In 2018, the industry issued about $6 billion in bail bonds and collected about $560 million in bail bond fees, according to a recent report by the independent Legislative Analyst’s Office, which noted there are about 2,500 bail agents licensed by the state.

The new law requires people held in county jails on suspicion of most misdemeanors to be released within 12 hours. Those accused of other misdemeanors, including domestic violence or repeated failures to appear in court, would not be released.

People held in county jails on felony charges and those not released automatically would be assessed for their risk of committing a new crime or failing to appear in court if released, using various factors to be decided by each county. Those judged to be a low risk would be released, although the court could order supervision by county probation staff.

Those deemed to be a high risk would stay in jail until their arraignment.

The Legislative Analyst’s Office report estimates the new law could increase pretrial costs for the state and county by hundreds of millions of dollars while lowering county costs as fewer people are held in jails.

An analysis last month by the nonpartisan Public Policy Institute of California concluded SB 10 would probably result in releasing more people from jail sooner, “but it would not address longstanding inequities in bookings and arrests.”

Looking at data from 2015, the study found 39.6% of those arrested on suspicion of misdemeanors — about 142,500 people — who were detained or released after two days would instead have been released within 12 hours under the provisions of the new law.

“Research suggests people who are released within a day may be less likely to be rearrested and more likely to meet their court dates, compared with those held for two to three days,” the report said. At the same time, about 3,000 people accused of felonies, 1.3% of those booked, who are currently released within a few hours on bail would probably be held up to 36 hours for risk assessment.

Despite that, more Black and Latino people would be released sooner, said Heather Harris, a PPIC research fellow and coauthor of the report.

In the presidential campaign, Biden and running mate Sen. Kamala Harris (D-Calif.) have proposed ending money bail.

“Cash bail is the modern-day debtors’ prison,” a Biden position paper says. “The cash bail system incarcerates people who are presumed innocent. And, it disproportionately harms low-income individuals.”

President Trump criticized Biden’s position at two campaign rallies in Nevada in mid-September.

“They want to abolish bail,” Trump told supporters during a rally in Minden, Nev., on Sept. 12. “So they want to abolish cash bail like they did in New York. They release people, the horrible criminals in New York, they release them, no cash bail.”

New York changed its state law this year to end cash bail for cases involving many misdemeanors and nonviolent felonies, but it gives judges discretion to require cash bail in other cases.

California voters have been sharply divided over the issue. A statewide poll in October 2019 by the UC Berkeley Institute of Governmental Studies for the Los Angeles Times found that 39% of likely voters at the time would keep the new law in place, 32% would cancel the law and reinstate the cash bail system, and 29% of voters were undecided.

Supporters point to a report by the California Judicial Council’s Pretrial Reform and Operations Workgroup that said using high bail as the only way to keep dangerous criminals behind bars is ineffective in protecting public safety when a defendant has the economic resources to attain release on bail.

“A pretrial system that relies exclusively on the financial resources of the accused is inherently unsafe and unfair,” said the report by the working group of 12 judges.

The judges cited a San Francisco case in which a woman was detained on $150,000 bail. She was released after 31 hours in jail when her relatives posted a portion of the bail amount. The San Francisco district attorney’s office declined to file formal charges, but the woman had signed an agreement to be responsible to the bail agent for the rest of the balance of a $15,000 fee.

The Proposition 25 campaign is already turning out to be expensive. A committee of supporters seeking to uphold the law abolishing cash bail, led by three billionaires, has raised some $8.3 million so far. The bail bonds industry has posted $9 million for its campaign.

The group Yes on Prop. 25 has received most of its money from Steve Ballmer, the former Microsoft chief executive who owns the NBA’s Clippers, and his wife, Connie. The two Bellevue, Wash., residents have contributed $2.5 million each to the campaign in favor of affirming SB 10.

The third-biggest contributor, who put in $1.5 million, is John Arnold, a Houston billionaire and activist who was an energy trader at Enron before running a large hedge fund.

The Ballmers explained their involvement in a statement, saying that “far too many people that are not a danger are getting stuck in jail waiting for their trials simply because they can’t afford bail — even though the system is prepared to release them.”

With problems in the criminal justice system being flagged in protests throughout the U.S., changing the bail system is likely to get more attention in the run-up to the election.

That could make waves outside the state because California would be the first state to fully abolish cash bail through legislation, said Harris, the PPIC researcher and co-author of the report.

“The elimination of money bail is a really big issue nationwide,” she said. “Bail reform has been ongoing in other states, but this one would be unique.”