Californians Should Reject Proposition 25
Californians voting in November 2020 should reject the recently named Proposition 25, a ballot measure that, if passed, will replace the injustice of money bail with an even more discriminatory pretrial system, Human Rights Watch said today. Voting “no” would repeal a 2018 law that was misleadingly promoted as pretrial reform but which in reality exchanges money bail for a system that uses racially biased risk assessment tools, gives judges nearly unlimited discretion to incarcerate, and increases funding and power for law enforcement. Keeping the 2018 law will likely result in more pretrial incarceration and will make achieving meaningful reform impossible.
The protests against racial injustice, including mass incarceration, following the police killing of George Floyd, demonstrate the need for bold structural changes to the criminal legal system, and not simply exchanging one bad process for another. Californians should vote against Proposition 25 and focus efforts on replacing the existing money bail system with reforms that reduce pretrial incarceration and guarantee meaningful due process for all accused people.
“With the old system, judges set high bail knowing it will keep people locked up; with Proposition 25 they can just order someone locked up without even setting an amount,” said John Raphling, senior researcher on the criminal legal system for Human Rights Watch. “The new system just increases judges’ ability to incarcerate people.”
Proposition 25 is a voter referendum on SB10, which was passed into law in 2018, after its backers sold it as an effort to address the harms of money bail. In fact, SB10 was a backroom deal between legislators, judges, and law enforcement unions that would give more power to judges and more money for probation departments, without ensuring any reduction in the number of people incarcerated before their cases are even decided. The law, which a few advocacy organizations backed, would end the use of money bail, but would allow judges to order “preventive detention” – pretrial incarceration with no avenue for release – with no meaningful due process constraints and based on criteria so subjective that judges can choose incarceration in nearly every felony case.
Human Rights Watch has documented how pretrial incarceration forces accused people to face the choice of pleading guilty to get free or contesting the charges and staying in jail. Many accept criminal convictions regardless of actual guilt. Judges and prosecutors have relied on this pressure to process cases more efficiently, making it a major driver of mass incarceration and of flawed convictions.
In California counties studied by Human Rights Watch, 70 to 90 percent of people accused of misdemeanors and low-level felonies plead guilty to be released before their first possible trial date. This use of pretrial incarceration to coerce rapid guilty pleas causes vast harm to people and damages the credibility of the courts. With the heightened power of “preventive detention” granted by SB10, judges can continue to use pretrial incarceration as a tool to move court calendars by pressuring guilty pleas.
SB10 requires all California courts to use racially biased algorithm-based risk assessment tools to decide who is even eligible for release from custody. These computerized tools take discrete facts about a person, without providing individualized context to understand them, and use those facts to create a profile. They then compare the individual to others with a similar profile and estimate the likelihood that individual will miss a court date or be rearrested. Because the data that feeds the profile is based on a racially biased criminal legal system, the estimates inescapably recycle and reinforce that same racial bias, but with the false veneer of scientific objectivity.
Risk assessment tools produce risk scores for each individual that inform whether or not that person is to be released from custody. However, the scoring system is completely adjustable – whoever controls the tool can change the threshold scores for release to justify locking up as many people as they want. The tools do not promote fairness; they promote a discriminatory and dehumanizing system. Leading civil rights organizations across the United States have joined in rejecting the use of these tools.
SB10 mandates that county probation departments administer the risk assessment tools and conduct the supervision and monitoring of anyone released pretrial. This mandate means a funding windfall for these law enforcement agencies and an expansion of their powers, at a time when people across the state and country are calling for less law enforcement and more community-based services.
Human Rights Watch has long exposed the harms of money bail and pretrial detention beginning with the 2011 report on bail in New York City, “The Price of Freedom.” In 2017, Human Rights Watch reported specifically on California’s pretrial system, finding it harmful to poor people and disproportionately so to Black and brown people in the state. While endorsing repeal of SB10 through a “no” vote on Proposition 25, Human Rights Watch also opposes the bail bond industry’s efforts to continue the harmful old system.
Rather than replacing money bail with risk assessment tools and nearly unlimited judicial discretion to incarcerate, California legislators should adopt pretrial reform in line with recommendations in the 2017 report, “Not in It for Justice: How California’s Pretrial Detention and Bail System Unfairly Punishes Poor People,” Human Rights Watch said.
Lawmakers should set strict limits on who is eligible to be jailed before they are convicted, mandating release for lower level felonies and most misdemeanors. They should set strong due process requirements to ensure that everyone has a fair hearing about their individual circumstances. They should oppose any use of risk assessment tools. These recommendations appear in a reform proposal, “Preserving the Presumption of Innocence,” that has been endorsed by a wide range of community and advocacy organizations in California and across the country.
“Californians have rightly fought to end the overuse of pretrial incarceration, but SB10 hijacked that call for change and created a new, even more unfair system,” Raphling said. “Rejecting SB10 opens the door to rethinking pretrial reform and creating a truly just system.”
Referendum on SB 10: Vote ‘No’ to an injustice we can’t afford
With a referendum, California’s Constitution gives voters the right to overturn unjust laws passed by the Legislature. This year, we have the chance to reject a law that will make our justice system even more racially biased and burden our counties with hundreds of millions in new costs when they can least afford it.
The law is Senate Bill 10, passed in 2018. SB 10 would eliminate the option for bail for people who are arrested and replaces our current discretion of judges and bail hearings with computer algorithms to determine who qualifies for release pending trial.
After its passage, more than half a million voters signed petitions to put its adoption up for a vote of the people, and thus it will appear as a ballot proposition in November. A “No” vote rejects SB 10, and I urge all Californians who care about civil rights and criminal justice reform to join me in voting “No.”
Before my election to the Legislature, I served as superintendent of two large school districts in Northern California and witnessed first-hand how the so-called “War on Drugs” destroyed a whole generation of young people. Harsh jail sentences, even for low-level offenders, put many on a path toward recidivism, unemployment and a cycle of poverty.
While government policies on addiction treatment, decriminalization and sentencing reform have changed much over the past several years, there is no denying that people of color are disproportionately more likely to receive longer prison terms and spend more time in pretrial detention. SB 10 would make this much worse by increasing the time African Americans, Latinos and immigrants spend in jail pending trial.
The biggest flaw in SB 10 is the use of computer programs to make important justice decisions. These are the same type of algorithms that Big Data companies use to bombard us with ads every day. While I might appreciate an algorithm recommending books or television shows, I have long been against their use in making determinations over insurance rates, and whether or not someone gets a home loan or credit card.
The use of algorithms has been proven to discriminate against the poor, minorities and people who live in certain neighborhoods. Relying on algorithms to make important criminal justice decisions is even more appalling.
If SB 10 is not rejected by voters this November, pretrial incarceration will increase for many in our most vulnerable communities, and our already overburdened court system will face even more delays. It could be days, if not weeks, for some defendants to secure their release pending trial. And each day someone is held in jail increases the chance that they will lose their jobs, fall behind on their bills and get trapped in a cycle of poverty.
The dangers are magnified in the current COVID-19 crisis, as more crowded jails mean more chances for infection for defendants and correctional officers.
The pandemic has also spawned a new crisis for our state and local governments as they grapple with lost revenue and the painful realization that they will have to massively cut essential public services. SB 10 would make the budget financial crisis even worse by saddling counties with hundreds of millions of dollars in new costs.
Under SB 10, Sacramento forces counties to build and administer the new system, but leaves local governments holding the bag. New Jersey, a state with fewer people than Los Angeles County, spent $125 million in just the first year it implemented a similar system. Unless voters reject it this November, SB 10’s costs will be many times higher, and the bill will come due at the worst possible time.
California voters must reject SB 10 at the polls this November. It will lead to more racially biased outcomes in our criminal justice system, and the price tag is far too high. Please join me in voting “No.”
California’s cash bail system favors the rich. Would replacing it help people of color?
At 34, Isaac Miller’s future looked bleak.
He was facing detention, a seven-year prison sentence, and a $50,000 bail. Without his family’s savings, he said he didn’t know how he would have paid his way out, which meant he could have lost his job and the ability to find a good lawyer.
“If I didn’t get bailed out, there would be no way I could defend myself,” Miller, now 42, said. “It was really hard on my family.”
Californians in November will head to the ballot box to vote on Prop 25, a measure that, if passed, would make the state the first to eliminate cash bail permanently. The new system would give judges greater discretion on setting the terms for pretrial release based on a risk assessment model.
Miller, who is mixed-race, had his felony assault charges dismissed after the prosecutor threw out the case. But the emotional toll weighed heavily on him for years, leading him to sue the police department and being awarded $500,000 in damages. He said being Black could have influenced the Hanford police officer to pursue a case, despite multiple witnesses claiming the accuser had hurt himself while intoxicated.
“What’s another reason behind it?” he said, questioning the officer’s intent. “It was hard for me to swallow. As a person of color, you have to fight for your innocence, but if you don’t have the means to do that, you’re not going to win.”
The unrest spurred by the killing of George Floyd has upended the country, forcing the U.S. to confront its longstanding history of racism in policing. With renewed attention on law enforcement and mass demonstrations against racial injustice enveloping the nation, protesters are calling for reform and demanding substantive change within a criminal justice system they say disproportionately harms and imprisons people of color.
Miller often thinks about how his future could have been different if he didn’t post bail, he said, adding that if convicted, he could have missed out on the first seven years of his daughter’s life.
“How many people that can’t afford to do that are locked away or put away on false charges?” he said. “It’s like a business to keep people locked up.”
The measure was first introduced in the California Legislature as SB10 and signed into law by Gov. Jerry Brown in 2018, but never went into effect after the bail bond industry launched an aggressive campaign to put it on the ballot. Now, the multi-billion dollar industry hopes voters overturn the law and keep cash bail intact, while reformers seek to put the industry out of business for good.
REASONS TO VOTE ‘YES’ ON CALIFORNIA’S PROP. 25
Supporters of the measure say the cash bail system disproportionately harms people of color and low-income communities, where a poor suspect can sit in a jail cell awaiting trial for a crime they haven’t been convicted of for an unknown period of time, while affluent suspects can immediately go home.
The goal is to create a system where freedom isn’t based on an individual’s ability to pay or put money into the pockets of “predatory lenders,” said state Sen. Robert Hertzberg, who drafted the measure.
“Over the last 30 to 40 years, an entire predatory lending industry has evolved around this notion of bail,” he said. “Poor people are getting stuck in jail and having their lives ruined.”
Across the nation, Black and Latino individuals are between 10 to 25% more likely than white individuals to be detained pretrial or have to pay cash bail, according to a report from the criminal justice think-tank the Prison Policy Initiative. Black and Latinos, on average, also receive bail amounts set twice as high as bail for white individuals, a troubling statistic that some advocates say drives poor people into “insurmountable debt.”
“It’s almost like a ransom,” said Lenore Anderson, founder and president for the nonprofit Californians for Safety and Justice. ”It’s so extreme that in many situations, even if they’re found innocent, even if the charges are dropped, or the case is dismissed, people end up in insurmountable debt that has to be paid to these bail bond companies.”
According to a report from the nonpartisan Public Policy Institute of California, nearly two-thirds of California inmates in 2014 sitting in a county jail were there because they could not afford bail. With the average California bail set at $50,000, an individual who contracts with a bail bond company would need to pay a nonrefundable 10% of their bail upfront, or $5,000, before they could get out. That means poor people would still need to fork over thousands of dollars even to afford a contract with a bail bondsman. The result is an industry that makes exorbitant profits each year, Anderson said.
In 2018, the bail industry issued about $6 billion in bail bonds and collected about $560 million in bail bond fees. Insurance companies are required to pay a 2.4% state insurance tax on these fees, which totaled to nearly $13 million that year, according to a report from the Legislative Analyst’s Office.
“Now the bail industry and the insurance companies behind them that make so much money, well they’re angry because we’re putting them out of business,” Hertzberg said. “Well, you know what? The slave traders I’m sure were angry when we had the Emancipation Proclamation.”
REASONS TO VOTE ‘NO’ ON CALIFORNIA’S PROP. 25
But many opponents of the bill say the system proposed to replace cash bail could make the racial inequity problem worse – not better – for people of color.
If passed, Prop. 25 would replace cash bail with a system that puts all of the power in the hands of judges who would make individual decisions based on a risk-assessment analysis.
“I see how easy it is for young men who feel like they have no opportunities to get down into a lifestyle that makes your chances of being arrested go up or where society seems to target you no matter what you do,” said former Assemblyman Mike Gatto, who is consulting for the bail industry’s campaign against Prop 25. “And this is something where I think frankly people are taking out their frustrations on bail because it involves money. It’s something that people can attack.”
The bail bonds industry has had an unlikely mix of allies, including many public defenders and civil rights and criminal justice reform organizations, including the ACLU and Human Rights Watch, who worry the risk assessment model will exacerbate existing racial inequities.
Though the ACLU has expressed opposition to SB10, the civil rights organization in a statement to The Bee on Thursday said it was neutral on Prop 25.
Gatto said bail isn’t the problem because it gives individuals a second option. Instead, he would like to see elected leaders tackle “bigger issues,” such as racial bias in policing and desegregating neighborhoods. He hopes addressing systemic racism, and quality-of-life issues will help reduce crime and give Black and brown people more upward economic mobility, rather than granting judges too much power.
“Tell me how you write an algorithm that is not biased,” he added. “I’d like to see more energy spent on addressing the bigger issues which we all know exist and trying to make sure that there are more opportunities, so people don’t feel so desperate and also where we really question why someone is arrested in the first place.”
According to the Legislative Analyst’s Office, judges use the tools to assign points that are based on particular traits. A judge determines a person’s risk level by the total number of points received and then decides if the person should be released. The tools were developed through research that showed that people who had certain traits, such as being younger, were more likely to commit a new crime or fail to appear in court, deeming them high risk.
But critics of the tools say they uphold racial bias in the criminal justice system by allowing judges to criminalize traits that are overwhelmingly represented in communities of color.
“What we know about our criminal justice system is that it’s not just about the courts, but it’s also about how we police our community,” said Michael Deegan-McCree, a spokesperson for The Bail Project. “The majority of communities of color in impoverished areas are overly surveillanced by law enforcement.”
When communities of color are patrolled more frequently than a white suburb, Deegan-McCree said, people committing crimes in those neighborhoods are policed more heavily than in white neighborhoods and end up in jail more often.
“We take huge issue with these risk assessment tools because they still give the upper hand to those who live in affluent neighborhoods, those who are white, and those who don’t come from communities of color,” he added.
Chris Loethen, a former public defender and criminal defense attorney for more than 15 years, worries judges will keep people in jails longer if they have the discretion to do so.
“Cash bail is the only way that levels the field while a case is pending,” Loethen said. “It’s not that all these dangerous people are being let out because they’re posting bail. The real problem is all these low-level people being in custody when they shouldn’t be because the bail amounts are so high and the judges don’t want to let people out.”
Loethen said judges might keep defendants detained as a way to prevent that individual from committing another crime when there is no way of knowing or because the judges “want to operate in their own self-interest.”
“Maybe once, they let somebody out, and then that guy went and killed his wife the next day,” he said. “Or maybe it’s because the judges want to operate in their own self-interest and what’s the best way to keep their calendars light and moving forward? Well, by keeping people in custody.”
CAN BAIL REFORM WORK IN CALIFORNIA’S JUSTICE SYSTEM?
Kevin Little, a defense attorney based in Fresno, told The Bee there is no simple bail reform solution. Though he hopes the measure will pass, he said the new system needs to be “monitored very closely.” He’s worried that cash bail could be replaced with a new predatory industry.
“I’m concerned that this is going to spawn a whole other industry of monitoring agencies and consultancies that are going to add expense and time that the law is intending to minimize,” he said.
He said setting onerous conditions for pretrial release could further restrict individuals who have yet to be convicted of a crime and potentially make it more difficult for them to comply with those conditions.
But Anderson said, under SB10, judges are prohibited from assessing fines and fees for people who are released pretrial.
“It is explicitly in the bill that you cannot charge people for the pretrial release services requirements, and it was written that way because of these concerns,” she said.
In response to racial bias concerns, Anderson added, SB36 was drafted. If Prop 25 passes, the bill would require annual reporting on race data related to decision making on pretrial release. The law would be the first requirement of publicly reported data in the country, she said.
“The criminal justice system is rife with racial bias at every step,” Anderson added. “But it’s fundamental that we get the predatory bail industry out of the picture so that we can start to build a system that every Californian wants.”