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Analysis

California’s Referendum to Eliminate Cash Bail, Explained

The upcoming vote on Proposition 25 could end money bail in California, but concerns remain.

This Novem­ber, Cali­for­nia voters face a refer­en­dum on ending cash bail, an unfair system that punishes the poor.

Through Propos­i­tion 25, voters must decide whether to uphold a law known as Senate Bill 10 (SB-10), which would elim­in­ate cash bail in Cali­for­nia, or to keep the current system.

Although the elim­in­a­tion of cash bail is appeal­ing, the law requires judges to use prob­lem­atic risk assess­ment tools to guide pretrial deten­tion decisions. Some crim­inal justice advoc­ates argue that SB-10 gives judges nearly unfettered discre­tion to detain indi­vidu­als pretrial and will exacer­bate racial inequit­ies in the crim­inal justice system. However, other advocacy groups support the law.

Voters face a complic­ated decision. As recently repor­ted by the Public Policy Insti­tute of Cali­for­nia (PPIC), the full impact of SB-10 is hard to predict. Current bail prac­tices in Cali­for­nia are varied, and a signi­fic­ant case pending before the Cali­for­nia Supreme Court may address the consti­tu­tion­al­ity of cash bail. Regard­less of what happens in Novem­ber, there is signi­fic­ant work ahead for Cali­for­nia to imple­ment a fair pretrial system.

Other states — most notably New York and New Jersey — have signi­fic­antly rolled back cash bail, and it was elim­in­ated in the federal system in 1984. The more places that do so the better, but the new systems should not come with too many draw­backs.

Cali­for­ni­a’s bail reform land­scape: SB-10 and Propos­i­tion 25

SB-10 was signed into law in 2018 and, if not for Cali­for­ni­a’s bail bonds industry getting a refer­en­dum on the ballot, would have gone into effect on Octo­ber 1, 2019.

A “Yes” vote on Prop 25 would uphold SB-10, making Cali­for­nia the first state to entirely elim­in­ate cash bail in favor of a system based on risk. A “No” vote would repeal the law, result­ing in the contin­ued oper­a­tion of Cali­for­ni­a’s current system, which in many juris­dic­tions includes both cash bail and risk assess­ment tools.

SB-10 gener­ally requires that people who are arres­ted for misde­mean­ors be released within 12 hours. (Some excep­tions include people charged with domestic viol­ence, viol­at­ing a protect­ive order, or stalk­ing, and people who have a recent crim­inal history, a history of viol­ence, or of viol­at­ing condi­tions of pretrial release.) For people charged with felon­ies or who fall into one of those excep­tions, the law creates a pretrial system that relies on judi­cial discre­tion and risk assess­ment tools to determ­ine whether to detain or release people and, if released, under what condi­tions.

Risk assess­ment tools, once favored by advoc­ates to help guide judi­cial discre­tion, have recently been subject to intense criti­cism and scru­tiny for perpetu­at­ing racialsocio-economic, and gender bias. Due to exist­ing dispar­it­ies in arrest rates, local book­ing prac­tices, and indi­vidual crim­inal histor­ies, data indic­ates that seri­ous racial inequit­ies will persist in pretrial deten­tion if the law goes into effect.

If Propos­i­tion 25 passes, the PPIC estim­ates that nearly 40 percent of those arres­ted and booked into jail would be subjec­ted to a risk assess­ment under SB-10 — approx­im­ately 311,000 people per year. However, because so many Cali­for­nia counties already use vari­ous risk assess­ment tools, it is unclear how many arres­ted people would be subject to a risk assess­ment if Propos­i­tion 25 fails and current prac­tices continue.

Another notable impact of the law is how long people are likely to be detained follow­ing arrest. The PPIC estim­ates about 40 percent of those arres­ted on misde­mean­ors (approx­im­ately 142,500 people) would likely be released within 12 hours rather than being held for up to two days. In contrast, approx­im­ately 1.3 percent of those booked for felon­ies (approx­im­ately 3,000 people) would likely be held longer than under the current system. Rather than post­ing bail quickly, which is possible in some circum­stances, they could be held for up to 36 hours for risk assess­ment — and then possibly for much longer if a judge concludes they should remain detained. Notably, PPIC’s misde­meanor release estim­ate may be too high. Due to a lack of avail­able data, its estim­ate does not consider all 13 excep­tions to pretrial release under SB-10, such as people with pending cases or those who have viol­ated a condi­tion of release in the past five years.

To complic­ate matters for voters, there is also a possib­il­ity that the Cali­for­nia Supreme Court could inval­id­ate cash bail through a pending case, In re Humphrey — though this is far from certain. In the mean­time, the Cali­for­nia Supreme Court recently ruled that judges must consider indi­vidu­als’ abil­ity to pay when impos­ing or review­ing monet­ary bail, but research from other juris­dic­tions raises ques­tions about the effect­ive­ness of abil­ity to pay hear­ings.

If Prop 25 is rejec­ted

A “No” vote on Propos­i­tion 25 means that SB-10 is repealed, and Cali­for­ni­a’s pretrial deten­tion prac­tices remain unchanged. Currently, Cali­for­ni­a’s 58 counties vary greatly in their policies.

Courts across the state use a combin­a­tion of cash bail and risk assess­ments in making pretrial release decisions with fifty-one counties using risk assess­ment tools in some fash­ion.

At the same time, reli­ance on cash bail appears to be declin­ing in Cali­for­nia, partly in response to the Covid-19 pandemic. In April 2020, the state imple­men­ted an emer­gency bail sched­ule, which set bail at zero for all indi­vidu­als charged with misde­mean­ors and low-level felon­ies, with some excep­tions. As a result, the statewide jail popu­la­tion dropped this year by 22,000, leav­ing approx­im­ately 50,000 people in jail. While the statewide emer­gency bail sched­ule was rescin­ded in June, a major­ity of counties, cover­ing at least 79 percent of Cali­for­ni­a’s popu­la­tion, have main­tained some form of the Covid-19 emer­gency bail sched­ule.

In the event of a “No” vote, advocacy organ­iz­a­tions are likely to advance an altern­at­ive pretrial frame­work that does not use risk assess­ments. But only time will tell whether the Cali­for­nia Legis­lature would adopt new meas­ures to elim­in­ate cash bail and reform its pretrial system.

If Prop 25 passes

“Yes” on Propos­i­tion 25 would mean that SB-10 goes into effect, which would alter pretrial deten­tion prac­tices in some counties. For juris­dic­tions already using risk assess­ments, the bill would have less of an impact.

Unless the prosec­u­tion files a motion for deten­tion, the law requires judges to release eligible people on the least restrict­ive condi­tions that will “reas­on­ably assure public safety and the defend­ant’s return to court.” Depend­ing upon an indi­vidu­al’s personal history, charge, and risk assess­ment score, some will be released on their own recog­niz­ance within 24 hours of arrest (low risk), while others may be subject to pretrial super­vi­sion (medium risk). If found to be high risk, indi­vidu­als will be detained until arraign­ment, which must occur within 48 hours.

At arraign­ment, the prosec­u­tion may make a motion for a deten­tion hear­ing, possibly result­ing in indi­vidu­als being detained until trial if the judge determ­ines it neces­sary to assure public safety or a person’s return to court. The prosec­u­tion may make such motions in a range of circum­stances, includ­ing when there is “substan­tial reason” to believe that no “condi­tions of pretrial super­vi­sion will reas­on­ably assure protec­tion of the public or a victim, or the appear­ance of the defend­ant in court.” The law also contains a presump­tion of deten­tion in certain cases, such as those involving viol­ence or threats of viol­ence, or where an indi­vidual has a recent convic­tion for a crime of viol­ence or is on proba­tion.

The debate over SB-10

As the elec­tion nears, public interest organ­iz­a­tions and advoc­ates in Cali­for­nia are in the odd posi­tion of align­ing with the bail bonds industry in oppos­i­tion to SB-10 — although for very differ­ent reas­onsCrit­ics of the law take partic­u­lar issue with its use of pretrial risk assess­ment tools (due to the possib­il­ity that they will perpetu­ate entrenched racial dispar­it­ies), increased judi­cial discre­tion to order deten­tion, presump­tion of deten­tion in certain cases, and the like­li­hood that pretrial service agen­cies will be housed in proba­tion depart­ments.

Other groups believe SB-10 is a posit­ive step forward: it would create a more uniform system that elim­in­ates cash bail in Cali­for­nia, bans the prac­tice of making people on pretrial release pay for super­vi­sion costs, will likely weaken Cali­for­ni­a’s multi-million dollar bail bonds industry, and should cause thou­sands of people to be released more quickly from jail, which could offer savings from reduced county jail costs.

Recom­mend­a­tions look­ing forward

In the event of a “No” vote, thereby repeal­ing the law, Cali­for­nia legis­lat­ors will need to go back to the draw­ing board to design a fair pretrial system for Cali­for­nia. If that occurs, the legis­lature should design a system that elim­in­ates cash bail without the use of prob­lem­atic risk assess­ment tools that entrench racial dispar­ity.

In the event of a “Yes” vote, Cali­for­nia must remain dili­gent in monit­or­ing the use and impact of risk assess­ment tools and, through legis­la­tion or Judi­cial Coun­cil action, should create strict stand­ards for how courts adjust the tools, and encour­age, or require, the use of tools that distin­guish between risk of flight and risk of commit­ting future crimes.

Though a 2019 law requires all pretrial service agen­cies to regu­larly valid­ate their risk assess­ment tools and publicly report data on any poten­tial biases found, provid­ing some over­sight and trans­par­ency, it is not enough to resolve concerns of entrenched dispar­it­ies. Further, if more indi­vidu­als are on pretrial release, the state should be vigil­ant in prevent­ing private interests from capit­al­iz­ing off pretrial super­vi­sion. For example, the state should not permit for-profit compan­ies to provide elec­tronic monit­or­ing services.

And, while guard­ing against inter­fer­ence from private indus­tries, Cali­for­ni­a’s legis­lature should consider expand­ing who is permit­ted to conduct pretrial assess­ments and super­vi­sion beyond public agen­cies — which will almost certainly be local proba­tion depart­ments — to include nonprofit organ­iz­a­tions such as the San Fran­cisco Diver­sion Project, whose work remains jeop­ard­ized by SB-10.

Finally, lawmakers should review how the law, by mandat­ing the place­ment of pretrial service agen­cies in public agen­cies and the use of risk assess­ment tools, impacts local reform efforts such as those under­way in Los Angeles County, and consider legis­lat­ive carve­outs, as was done for the well-estab­lished pretrial program in Santa Clara County.

Regard­less of Propos­i­tion 25’s outcome, Cali­for­nia has a great deal of work ahead to design and imple­ment a fair, unbiased pretrial system that maxim­izes indi­vidual liberty while redu­cing entrenched racial inequit­ies.