SAN FRANCISCO (CN) — A ballot measure aimed at ending cash bail in California has civil rights groups at odds over what should replace it.
In 2018, then-Governor Jerry Brown signed Senate Bill 10, doing away with California’s money bail system and enacting criminal justice reforms that were lauded in the Legislature but sharply criticized by civil rights advocates for not going far enough.
The same battle is playing out in the campaign over Proposition 25, which, if passed by voters, would preserve SB 10 and eliminate bail.
Instead, judges — aided by computer-based “risk assessment” models — will determine whether and under what conditions pretrial detainees can be safely released to await trial. The algorithm analyzes a defendants’ past conduct, family and community ties, and criminal history to predict their safety risk and the likelihood they’ll make future court appearances.
With some exceptions, most people accused of low-level misdemeanors will be booked and released within 12 hours without ever undergoing a risk assessment. The nonpartisan Public Policy Institute of California estimates nearly 276,000 people would be released annually within 12 hours, including 142,500 people who are currently held for about two days. Exceptions to this policy include domestic violence, prior serious felony convictions and those arrested for a registrable sex offense.
Felony arrestees would also be detained for up to 36 hours and subjected to the risk assessment.
“High-risk” individuals are held until arraignment, which should occur within 48 hours but could take longer if delayed by a weekend or a court holiday. “Medium-risk” arrestees could be released with conditions set by the court, while those deemed “low risk” must be released on their own recognizance within 24 hours.
Civil rights advocates say these computerized risk assessments, which distill a person down to a set of static elements, are rife with pitfalls and are inherently biased against the young, the poor and people of color.
“They essentially create a profile of someone based on out-of-context data points. They are inescapably biased based on race, class and age,” said John Raphling, senior researcher on criminal justice for Human Rights Watch. “Who gets arrested more? Who gets stopped more? Who gets searched more? Black and brown people are going to have worse risk scores based on the historical data that gets fed in.”
Raphling said judges can still override low-risk assessments and keep people in jail. This expansion of judicial discretion is one of the reasons why his group pulled its initial support for SB 10 and now opposes Proposition 25.
But a “thin veneer of scientific accuracy” also gives the risk assessment tool an insidious air of authority that cannot be argued with. “At least with judges you can challenge them,” he said.
Assessing the assessment
Recognizing that risk assessments are widely reviled by civil rights advocates, the Legislature passed a compromise bill in 2019, SB 36, which requires assessment tools to be reviewed for bias every three years. California’s Judicial Council — the rule-making body for the state courts — will have to publicly post and submit those findings in a report to the Legislature and the governor.
“There are mechanisms in place for us to determine if there is racial bias in the tools being used,” said Sam Lewis, executive director of the Anti-Recidivism Coalition, a Proposition 25 supporter. “In SB 10 there is also that reporting requirement. We just made it stronger with SB 36.”
Lewis, a former life prisoner turned reform advocate, said it can take years of work to improve on a piece of legislation that opponents criticize for not going far enough, and SB 10 is no different.
He sees SB 10 as a step toward permanently reforming an unfair pretrial system that favors the wealthy and penalizes the poor.
“If I’m Joe Citizen who is poor and can barely get $400 out of my ATM and I get arrested for a fight that someone else started, and my bail is $10,000, I don’t get that money back and I have to pay this loan back,” Lewis said. “All of these ramifications because I’m just a working-class average citizen, but a rich person gets every penny back.”
While bail is often billed as a successful deterrent to skipping court, Contra Costa County District Attorney Diana Becton said a simple text message can be just as effective. “Just a reminder has done more from my perspective to get people to court than any bail system,” she said.
Becton said the benefits of SB 10 exceed its flaws. “We have to think about what happens when people are separated from their family and friends awaiting trial, especially when they are not a risk to society but can’t afford money bail.”
“A power grab for probation departments”
Community organizer Lex Steppling, who heads The Committee Against Pretrial Racism in opposition to Proposition 25, said he worries that SB 10 will usher in a huge expansion of power and resources for law enforcement.
“Risk assessments are very problematic but they’re not even the thing about the bill that most concerns me,” he said.
Steppling pointed to one provision he finds particularly worrisome: Section 1320.26, which establishes “pretrial assessment services” — new county departments that will perform risk assessments and make recommendations to the courts on pretrial detention and conditions for release.
Though the section specifically prohibits courts from using law enforcement to perform risk assessments, it also outlines a host of requirements agencies must meet to operate under the “pretrial assessment services” umbrella.
They must have “relevant expertise in making risk-based determinations,” “supervising offenders in the community,” “employing peace officers” and “making recommendations to the courts” under California’s probation rules.
Steppling said these prerequisites all but guarantee that pretrial services will be housed in probation departments, with all the new funding that entails.
“It’s disingenuous to claim that this bill isn’t a power grab for probation departments,” he said.
The law also lays out the funding mechanism for these pretrial assessment services. The Judicial Council and the Chief Probation Officers of California will consult with the Department of Finance to estimate the amount of money they’ll need to adequately support the program, something Steppling sees as a blank check for probation departments.
David Mauroff heads an independent nonprofit whose work has been thrown into jeopardy by SB 10. San Francisco Pretrial Diversion Project has been around since 1976 and is viewed as the gold standard in diversion programs — helping people avoid jail through substance abuse and mental health services, and connections to jobs and housing.
Should Proposition 25 pass, SF Pretrial will be absorbed into adult probation. “They would inherit 50-60 new staff and the funding that goes along with that and the pretrial function. But there’s about a third of our staff that won’t have a home and we won’t have the infrastructure as an agency to exist,” Mauroff said.
Mauroff said many of the current staff are averse to working under the aegis of law enforcement.
“It’s a quandary. These are people who work at a nonprofit space intentionally. They work at a community-based agency and they don’t want to be law enforcement,” Mauroff said.
Mauroff isn’t necessarily opposed to risk assessment tools, saying “it’s a matter of how the tool is used.” SF Pretrial uses one developed by the Arnold Foundation, a group that has contributed $500,000 to the Yes on 25 effort through its advocacy organization, the Action Now Initiative. John Arnold, a Houston billionaire and former hedge fund manager who heads the Arnold Foundation, has personally donated $5 million to the campaign as of Sept. 28, according the California Secretary of State’s records.
“We use it through a community-based lens, and we have strong diversion programs that prevent people from getting to that point in the first place,” Mauroff said. “We also have programs that look at people who weren’t released through the risk assessment tool and they get a second look.”
Raphling with Human Rights Watch said he’s also concerned about placing pretrial supervision with probation departments rather than independent nonprofit agencies like SF Pretrial.
“It sets up a situation where people who are released are being put on pretrial probation to be sent back to jail if they screw up,” he said.
Further complicating matters is a California Supreme Court case that could invalidate cash bail statewide. The case centers around retired shipyard worker Kenneth Humphrey, whose $350,000 bail on a charge of robbing an elderly neighbor of $7 led to a landmark appellate court ruling that requires judges to consider a person’s ability to pay when setting bail.
While the high court has yet to review the case it agreed to hear more than two years ago, it recently ordered in the interim that judges should consider a defendant’s financial status and avoid keeping people in jail because they cannot afford bail. The court could be awaiting the outcome of the referendum, as the case would be moot if SB 10 takes effect.
A “messy and political” fight
While the bail industry has mostly stayed out of the public fight over Proposition 25, it has also poured millions into opposing it.
Most of the donations listed in the Secretary of State’s records are from individual bail agents — a few thousand dollars here and there — but the big-time contributors are the insurance companies that back these bonds.
After SB 10 was passed, the industry acted swiftly to protect its interests. In 2019, it tried introducing The Bail Reform Act, an initiative to grant bail constitutional protection from legislation like SB 10. But it was quietly pulled after failing to gather enough signatures by the March 17, 2020, deadline.
Instead, the American Bail Coalition placed Proposition 25 on the ballot as a veto referendum.
While the opposition certainly makes for strange bedfellows, the two interests not in any way aligned, said Steppling, who lamented how “messy and political” the fight over bail has become.
“As harmful and parasitic as it is — none of us like the bail bonds industry — but for some people it’s still a valve of release,” he said, pointing to a local community bail fund run by the Los Angeles-based grassroots organization Dignity and Power Now, where Steppling works as director of campaigns and policy.
“On Mothers’ Day we work to get Black mothers out of jail. It’s very hard to do that in California but we’re able to do it. Under Prop. 25 we would not be able to do it,” he said.
Assemblymember Rob Bonta, a Democrat from Alameda who co-wrote SB 10, said the opposition from progressives has been “ironic and perplexing.”
“We can make improvements. If Prop. 25 passes we can address the issues that have been raised by the left. We can root out biases in the risk assessment tool. We can even restrict the role of judges. We can’t do that if it fails because there is law that says if a referendum fails then the Legislature cannot pass anything that is essentially the same,” Bonta said, adding that the opposition is “looking for something that is better, but arguably, we’d be barred from doing that as a Legislature.”
Lewis from the Anti-Recidivism Coalition shares Bonta’s concern. “Constitutionally, we won’t be able to end cash bail,” he said.
Lewis also worries the Legislature could lose the political will to enact any additional reforms. “The elected officers who have supported so many criminal justice reforms in the past will take this as a message from the people of California that we’ve gone too far,” he said.
The fight for SB 10 is also deeply personal for Lewis. “Before Covid-19 hit we had a member of our organization who was arrested for vandalism,” he said. “Had SB 10 been implemented he would have been released in 12 hours. Because it was not implemented, he stayed in the county jail for a week. And, at that time, he was murdered.”