The presumption of innocence is a cornerstone of the American justice system. Yet many people get stuck in jail for months without being convicted of anything.
In one especially egregious case, a 64-year-old San Francisco man accused of stealing a $5 bottle of cologne was held for 11 months, first on $600,000 bail, then $350,000. He was eventually released to a drug treatment program, but only after a state appellate court intervened.
As the justices put it, the man was “imprisoned solely due to poverty.”
Proposition 25 on the Nov. 3 ballot offers California voters an alternative.
If it’s approved, cash bail would be replaced by evaluations to determine whether people who have been arrested on felony charges can be expected to show up for court hearings and assess the risk that someone would commit crimes if they were granted pretrial release.
People charged with the most serious and violent offenses wouldn’t be eligible for pretrial release, and courts could order people who are eligible to report to probation officials or submit to electronic monitoring as a condition of release.
The risk-based release system was outlined in SB 10, legislation passed in 2018 and signed into law by then-Gov. Jerry Brown. But the law was put on hold after a referendum sponsored by the bail industry qualified for the ballot. So the decision falls to the voters.
A vote in favor enacts the law, a vote against overturns it.
There is a constitutional right to pretrial release for most offenses. Traditionally, that right has been exercised through the bail system. A criminal defendant can post cash or property. In most cases, however, defendants pay a nonrefundable fee — typically 10% of their bail — to a bail bondsman, who is liable for the full amount if the person doesn’t show up in court.
But the system is deeply inequitable. A high bail may not pose any an obstacle for an affluent person charged with a serious felony, but even a low bail is often too much for a poor person charged with a relatively minor offense.
Criminal proceedings are notoriously slow, and people jailed for months can lose their jobs and homes. The financial burden may lead them to accept an unfavorable plea bargain, and the accompanying criminal record, because they can’t afford to wait for a chance to exonerate themselves during a trial.
This isn’t an academic scenario in a state where, according to the new census figures, about 1 in 6 people live in poverty or near-poverty.
Moreover, academic studies have found that bail Black and Latino defendants are more likely than whites to be detained prior to trial.
Opposition to Proposition 25 is led by the bail industry, which has an obvious economic interest in maintaining the status quo, with support from some police and prison guard associations that reflexively oppose almost every criminal justice reform.
Critics argue that the risk-assessment metrics will disadvantage minority defendants as the bail system already does. That’s hardly an argument for sticking with the present system, but judges aren’t bound to follow the recommendation of the risk assessment. Moreover, lawmakers should assess the results of the new system and make any necessary changes.
Proposition 25 would bring some equity to the state’s bail system while ensuring the most dangerous offenders aren’t freed. The Press Democrat recommends a yes vote.
10-10-2020, 09:08 PM
karenm97
Re: Proposition 25: Cash Bail
This is a tough one. Here's an argument 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.
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 probation officials 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.
