Should Californians abolish cash bail or should the existing system remain in place?
When Californians vote this election, that is the question they will be asked when it comes time to consider Proposition 25.
Here is what you need to know about the ballot measure.
What is Prop. 25?
Former Gov. Jerry Brown signed a law banning cash bail systems in August 2018 and replacing them with risk-based assessments created, in large part, by computer algorithms.
Historically, people who do not have money and cannot afford to pay bail end up sitting in jail, whereas those with access to cash or resources get released. Research has found minority communities and even families of domestic violence survivors, can end up bearing disproportionate costs of cash bail.
Faced with the prospect of their industry being outlawed, the state’s 3,200 licensed bail bondsmen and 7,000 employees fought back and gathered signatures for a referendum. With ample support from other groups, they collected enough signatures to put the future of the law up to the voters.
A “Yes” vote for Proposition 25 will uphold the law and eliminate cash bail in California.
A “No” vote would allow the system to remain as it has for decades.
How do bail bonds actually work?
When someone is arrested and jailed, a judge sets bail based on the alleged crime, the person’s criminal history and a sometimes unscientific guess of how likely someone is to return to court throughout their case.
Judges generally follow what’s called a bail schedule, a preset grid that has dollar amounts attached to specific crimes.
Most people don’t have thousands of dollars on hand to pay to get out.
Instead they turn to bail bond companies.
Bondsmen charge a fraction of the bond amount — typically 10% — and arrange with the courts to have the defendant released from jail. The bond company basically guarantees the defendant will appear at hearings. Companies will try track down defendants who do not appear. If they disappear, the bondsman would be on the hook for the entire bond amount.
But in the majority of cases, defendants attend their hearings. The 10% fee is nonrefundable, even if charges are later reduced or the case is dismissed.
Who wants Prop. 25 to pass?
The California Democratic Party, the League of Women Voters of California, and Gov. Gavin Newsom have endorsed Prop. 25 to end cash bail.
“I think we are not going to make progress until we get the bond industry out of the picture,” said Robin Lipetzky, a public defender in Contra Costa County. “There are a lot of things we can do to improve the system when we are no longer wedded to a money-based system.”
Supporters of Prop. 25, such as Lenore Anderson, founder of Californians for Safety and Justice, argue that the criminal justice system “is rife with racial disparities at every stage.”
“There are key parts of Proposition 25 that will help us start to build a fair and effective pre-trial system,” she said.
Supporters also warn that a no vote on Proposition 25 could prevent future efforts to eliminate bail in California.
Assemblyman Rob Bonta, D-Alameda, was a co-author of the law Brown signed that prompted Prop. 25, and said the ballot measure is intended to fix a system that’s “unfair, unjust, unsafe.”
“It’s pay to play and judges people on the size of their wallet, not the size of their risk,” Bonta said.
Why are two very different groups against Prop. 25?
Two fundamentally different groups have found common ground against Prop. 25
Unsurprisingly, the bail industry is opposed.
But less expected is opposition from groups such as Human Rights Watch and Equal Justice Now, who argue that the ballot measure would result in unjust incarcerations.
Topo Padilla, president of the Golden State Bail Agents Association, says that if passed, the ballot measure will destroy family-run businesses like his own, which employs 10 people and which helps keep the wheels of justice turning by ensuring that people show up for court when they’re supposed to.
“I’m fighting because for 37 plus years, I know what I have done and my family has done to help people that are incarcerated, rich or poor,” he said.
He questioned how the computer algorithm-aided risk assessments that judges will be able to use if the initiative passes in determining whether a person stays in jail or is released from custody.
“It’s a binary switch, zero to one. You’re done, you’re staying in jail,” he said. (In reality, the proposed risk assessment is more nuanced and has a range of factors that judges would consider when evaluating someone’s risk.)
Padilla isn’t alone in making that argument.
Human Rights Watch argues the referendum would allow judges the authority for preventive detention, wherein someone would be incarcerated pre-trial without the ability to seek release.
“It’s not an improvement on the old system. At best, it’s an equally bad replacement,” said John Raphling, a senior researcher at Human Rights Watch.
Raphling disputes that voting against Prop. 25 will set bail reform back in California.
“I’d rather start at square one and build something good,” he said.
What the research actually shows
In an August Public Policy Institute of California report, researchers estimated that one-in-four booked arrestees would likely see changes in when they are released if the referendum passes.
Longstanding inequities elsewhere in the system about who is actually arrested, jailed, and ends up with criminal histories would likely result in African Americans being held for risk assessments more than other groups, said Heather Harris, a researcher at the Public Policy Institute of California.
African American men are disproportionately booked after felony arrests, rather than being cited and released, meaning risk assessment rates for that group would “far exceed” others.
But, Harris said, that’s not a question about the future of cash bail — it’s a question about how to overcome existing biases in who ends up in jail in the first place, a separate issue altogether.
“The main thing about pretrial risk assessment is that it can propagate the historical inequity forward if you don’t take steps to stop that,” Harris said. “But you can create a policy framework around pretrial risk assessment that mitigates those disparities.”