This story aired on UpFront on Monday, November 2, 2020.
By Ariel Boone (@arielboone), KPFA election reporter
In the final days of the 2018 California legislative session, the push to eliminate cash bail went through massive revisions that lost it support from a lot of groups working to end mass incarceration. It passed — narrowly. The day after Governor Jerry Brown signed it into law in 2018, the bail industry filed paperwork expressing their intent to challenge SB 10 by bringing it before California voters. That’s Prop 25.
Activists fighting against mass incarceration agree that the money bail system is racist and should be abolished. But they’re split on whether voters should approve SB 10, by voting for Prop 25.
Mohamed Shekh is national campaigns director of Critical Resistance, a prison abolitionist organization that’s opposing Prop 25, because they’re opposed to what it uses to replace cash bail: algorithmic tools that assess an arrested person’s risk of either failing to return for trial, or getting arrested again before trial.
“Yes, it does remove cash bail,” Shekh says of Prop 25, “but the underlying problem with cash bail is not just that money’s involved. It’s the fact that people are being locked up before trial.
“Once you’re deemed a risk, then there’s actually no way for you to be released pretrial, even though you have not yet been convicted of anything. Prop 25 is really a wolf in sheep’s clothing of a reform bill.”
The question facing voters is whether that’s worse than the cash bail system we currently have.
“The current system spends about $5 million a day across California, just caging people pre-trial simply because they cannot afford cash to pay for their bail,” says John Bauters of Californians for Safety and Justice — one of the organizations that helped get SB 10 passed, and is campaigning to get Prop 25 approved so it can go into law.
“We would not want to exchange one harmful system for one that is even worse.” – Andreya Garcia-Ponce De Leon
Bauters cites research that indicates anywhere from 50,000 to 150,000 more people could be released more quickly pretrial, if Prop 25 is passed.
Most of the releases would be people charged with non-serious misdemeanors who would get automatic release under prop 25. The open question is what would happen to everyone else – people charged with felonies, or people who are charged with misdemeanors but have criminal records, or are on probation, or if they’ve missed any court dates. They would then undergo risk assessment, and a key study admits Proposition 25 would not reduce racist outcomes for Black people caught in the system.
And some advocates warn things could be worse for those undergoing risk assessment under Prop 25.
Andreya Garcia-Ponce De Leon is with the End Pre-Trial Racism Committee — it’s the smaller No on 25 campaign that’s not bankrolled by the bail industry, but supported by activist groups like Essie Justice Group and Color of Change. Andreya’s organization in San Bernardino county, Free Them All, supports people who get out of jail with housing, food and job help.
“We would not want to exchange one harmful system for one that is even worse,” Andreya says.
“I am directly impacted in this. I have a failure to appear, which was not in any part my fault. That was actually on the fault of the judicial system. And my attorneys of record were never noticed.
And even though it was an error of the court, the computer doesn’t know that. The computer’s going to read – ‘Failure to appear? That is high risk. So, therefore, you are going to stay in incarceration.'”
There are two basic concerns about these algorithmic risk-assessment tools,
The first is the data that goes into them: For instance, Black people are more likely than whites to be charged for crimes, and more likely to get booked into jail for a crime instead of cited and released. That means they’re more likely to have a record. That means they’re more likely to be subject to the algorithm — and that an algorithm’s more likely to flag Black people as having a risk of getting arrested again before trial. Additionally, algorithms could include inputs like ZIP code, codifying the criminalization of people from unwanted neighborhoods.
The second concern is how judges will use what the algorithm tells them.
“Often we’ve found is even when people have low risk, the judges are overriding the low risk and still detaining people,” says John Raphling.
Raphling is a senior researcher on the criminal legal system for Human Rights Watch, which is opposing Prop 25. He also used to be a deputy public defender in Los Angeles County.
Raphling says the courts are motivated to keep individuals locked up longer to obtain convictions. “This is a really important thing to understand what motivates judges and prosecutors is, people plead guilty quickly when they’re locked up, people in pretrial detention.”
A 2019 study by researchers at Harvard showed participants summary information about a person’s race, criminal record, and what an algorithm predicted their chances were of either failing to appear or getting arrested before trial. Then it asked participants to make their own call on what each person’s risk was. On average, participants increased the risk assessment of Black people, and decreased it for white people.
But Prop 25 proponents say judges can already do the same with bail. “They can currently put their thumb on the high end of the bail schedule, if they just don’t like the neighborhood the person comes from or the way they look,” says John Bauters. “Whereas under SB 10, the vast majority of people who are misdemeanants don’t ever see a judge they’re actually released on their own recognizance.”
Bauters disagrees that voters should reject Prop 25 if they are concerned about the algorithms. “This is a binary choice for voters,” he says. Do you wish to get rid of the cash bail system: Yes or no?”
A third point of conflict is whether passing Prop 25 makes it easier or harder to get something better into law.
“Legislators are not going to pick up and suddenly do a, quote-unquote, ‘more progressive’ version of bail reform,” Bauters says. “When the bail industry is still in the room with all its money and they spent $3 million over the past three years, lining the pockets of legislators in Sacramento to make sure that they could keep their industry intact, and they lost by one vote in the Assembly — This passed by one vote.”
Bauters campaigned hard for SB 10 and fought with the bail industry in the halls of the state capitol. His argument: pass Prop 25 to break the political power of the bail industry now. Then it will be easier to pass amendments that make it better. SB 10 already requires an evaluation within five years and a report to the governor and legislature in one year identifying any problems. And another bill already requires the risk assessment algorithms be made public.
“The hardcore reality here today is that this bill was a compromise in the end between all three branches of government,” he says. “Does it have every single thing I want in it? No. Absolutely not. But I know as an advocate that you have to have the bail industry out of the picture.”
But Prop 25’s anti-carceral opponents worry that taking out the bail industry will increase spending in the criminal system, redirecting power and resources to the institution they fight against. It’s the opposite of abolition, they say.
“It’s going to expand funding and power of probation departments. It’s going to expand the power and scope of the judicial system to give judges more discretion to lock people up pre-trial, and going to overall expand this system that we understand is fundamentally racist, controlling, and harmful,” Mohamed Shekh says.
If Californians pass Prop 25, we won’t be the first state to eliminate cash bail. New Jersey ended their cash bail system in 2017, adopting a point-based risk test system. Alaska did something similar in 2018.
The ACLU of Northern California is not making an endorsement on Prop 25. The ACLU of Southern California endorses a “No” vote on Prop 25. And separately, the bail industry has raised about $8 million dollars to oppose Prop 25 — they’re in a battle for their own survival.