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.