SAN FRANCISCO (CN) — Californians soundly rejected a ballot measure that would have put an end to the bail system, with statewide results Wednesday showing it down by 11 points.
Unofficial results provided by the California Secretary of State show Proposition 25 tanked in nearly every county outside the Bay Area, with the exception of Yolo County and Alpine County. The statewide vote tally stood at 44.6% to 55.4% Wednesday.
But state Senator Bob Hertzberg, a Democrat from Van Nuys who has seemingly made it his mission to drive the bail bond industry out of California, said Wednesday morning the industry’s days are numbered.
“The arc of justice is long, but it bends toward ending cash bail. Millions of dollars from the predatory bail industry may buy them some time, but it can’t overpower our movement toward justice,” he said.
Proposition 25 would have enacted Senate Bill 10, a law Hertzberg co-wrote that abolished cash bail in favor of computer-based “risk assessment” models. Under the risk assessment models, judges would determine whether and under what conditions pretrial detainees can be safely released to await trial.
The predictive algorithm analyzes a defendant’s past conduct, family and community ties, and criminal history to predict their safety risk and the likelihood they’ll make future court appearances.
Risk assessments essentially create a profile of an individual based on a set of static data points. Opponents assailed the technology as inherently biased against the young, the poor and people of color.
Proposition 25 advocates remained confident that risk assessment deficiencies could be mitigated by safeguards like a companion law requiring assessment tools to be reviewed for bias every three years.
“We could have fixed it after the fact,” Hertzberg said. “This is a binary discussion. Being against it meant that the current bail structure that is so unjust to so many people stays in effect.”
Hertzberg said he believes voters were confused by the way the measure was presented — it was a veto referendum placed on the ballot by the American Bail Coalition — and that more would have voted in favor of it had they been “more informed about the issue.”
The failure of Proposition 25 means the Legislature will be barred from passing any laws similar to SB 10 in the future.
But for a politician used to taking the long view, this is one battle lost in a continuing war. Hertzberg likened it to the congressional fight over the Civil Rights Act.
“There are other cards in the deck,” he said.
For instance, a case currently before the California Supreme Court on the constitutionality of the bail system could kill the industry. While the high court has yet to set a date to hear the case, it recently ruled in the interim that judges should consider a defendant’s financial status and avoid keeping people in jail because they cannot afford bail.
The industry is also facing a federal class action accusing trade associations, two bail agencies, and surety companies who underwrite bail bonds of colluding to fix the price of bail bonds in California.
Hertzberg said he will also revisit a bill to require bail companies to comply with consumer protection requirements to which the industry believes it is exempt.
“The bail industry is on life support.” he said, “And there’s not much oxygen left in the tank.”
For community organizer Lex Steppling, the outcome was a relief.
“Whatever narrative the opposition puts out — they may say it was because of the bail industry — and I expect people who lost to say that, but the truth is they ran a very flawed piece of legislation and made compromises they didn’t have to make,” said Steppling, who heads The Committee Against Pretrial Racism in opposition to Proposition 25.
Such compromises include empowering county probation departments to take over the pretrial process. A host of criteria for “pretrial assessment services” built into SB 10 all but ensure that law enforcement agencies will have the authority to set the conditions for pretrial release. Steppling said his committee referred to SB 10 colloquially as “setback 10.”
“It’s not really forgivable to allow an institution like probation to amass this kind of power through legislation you’re supporting, built off the momentum of the struggle for bail reform,” Steppling said. “It’s not all about money bail. It’s about pretrial detention, pretrial incarceration and the drivers of pretrial incarceration were going to be empowered by this bill.”
Steppling said Proposition 25’s defeat speaks to the power of grassroots organizing. He’s proud that his committee accepted none of the $10.2 million raised by bail agents and insurance companies to fight the measure.
“Yes on 25 was mostly money from big tech and the probations union. We spent $200,000,” he said. “We made a choice not to take any special interest money, no tech money, no bail industry money.”
He said the measure’s failure also sends a message to the liberal political establishment that local communities do not want criminal justice reform to be dictated by politicians. “The Democratic establishment has failed our community on matters of justice reform,” Steppling said. “We want them following our lead, not the other way around, and this is an example of that happening.”
Steppling pointed to the passage of Measure J in Los Angeles as evidence of that demand. It diverts a minimum of 10% of the county’s unrestricted general funds from law enforcement to job training, mental health treatment, social services, and other alternatives to incarceration.
“We have a vision that creates independent community-based agencies and something like measure J allows them to be funded,” he said.
Sam Lewis, executive director of the Anti-Recidivism Coalition, said bail industry funders preyed on some civil rights advocates’ anxieties about risk assessment tools and working with law enforcement.
“The bail industry strategically played us,” he said. “They were able to amplify the voice of a smaller segment of bail reform advocates that feared the unknown.”
Lewis said criminal justice bills are rarely flawless but can be amended as problems arise. The referendum takes amendment off the table.
“You had some people who thought this algorithm was a greater threat than cash bail,” he said. “Was it perfect? No. But once we affirmed SB 10 we were going to amend it just as we’ve done time and time again.”
In the right hands, Lewis said, California’s pretrial system could have looked a lot like that of New Jersey, where sweeping policy changes — including the adoption of a risk assessment tool — led to a 43.9% drop in the number of people held in jail pretrial between 2015 and 2018.
“The training is how we make sure the implementation is correct,” Lewis said.
For Lewis, the bail system is akin to slavery and the oppressive Black Codes that kept people of color in poverty for decades.
“Imagine you know you live in a brutal system that you know is taking money out of your pocket. And over there, you’re not really sure what’s going to happen. You do know that you’ll be able to fight for the change. That’s what Proposition 25 is,” he said.
Tying the struggle against the bail system back to slavery, he said that faced with the choice of continuing to live under that brutal system or choosing an uncertain future fraught with hardship, “the majority of my forefathers and foremothers would have taken the unknown freedom.”