The presidential race may feel like a foregone conclusion in solid-blue California as the state begins its early voting, but there are still heated contests further down the ballot. With Proposition 25, for example, voters are facing perhaps the largest singular criminal justice reform effort ever put up for popular vote. If it passes, Prop. 25 will eliminate cash bail for the state of California, helping to end a fundamentally discriminatory way of determining whether people have to stay in jail before trial. The American value of "innocent until proven guilty" simply cannot work if people are forced to stay behind bars for their inability to afford cash bail.
California’s proposal is unique in its scale and scope, but it follows in the footsteps of similar reforms throughout the country. Legislators, judges, sheriffs, district attorneys and activists from across the political spectrum are leading a nationwide movement away from cash bail. States and counties of all sizes have reformed their criminal justice systems to ensure that everyone is actually treated as innocent until proven guilty. Instead of holding people on the basis of what they can afford, local leaders have implemented systems to help judges determine whether someone is at risk of missing a court date or committing a new crime if they’re not held before trial.
As Californians consider their vote on Prop. 25, here are three success stories that show why Yes on Prop. 25 is the right choice.
The State of New Jersey — population: 8.9 million
A 2013 study by the Drug Policy Alliance found that 12 percent of the 15,000 people in New Jersey jails were only there because they couldn’t afford bail of $2,500 or less. The statistic helped to shine a light on a harmful and discriminatory pretrial system and shocked the state into action. In 2017 New Jersey’s Criminal Justice Reform Act replaced this wealth-based system with one that prioritized safety, implementing risk assessment, a new pretrial monitoring system, speedy trial laws and more public defenders at first hearings.
So far, the reform has been an undeniable success. The New Jersey jail population has almost been cut in half, falling from 15,000 in 2012 to 7,937 in 2019. A 2019 state report found that risk was being accurately predicted, court appearance rates remained consistently high and crime rates remained consistently low. And a 2019 report by MDRC found that the state’s criminal justice reforms resulted in fewer arrests, more pretrial releases, and less time spent in jail following arrests.
This positive outcome was a surprise to many critics who predicted the reforms would result in sky-high rates of recidivism and people skipping court dates. In fact, reality TV star “Dog the Bounty Hunter” even got involved in a campaign, warning that crime would spike without cash bail. Those fears never came to fruition. As The New Jersey Star-Ledger editorial board wrote in 2019: “Minor crimes committed by those on pretrial release increased by less than 2 percent. For serious crimes, it was 1 percent. Nothing like the malignant effect the bail industry was hyping.”
Overall, New Jersey’s criminal justice reform helped to free thousands of people of every race who would’ve been stuck behind bars simply because they didn’t have enough money to make bail.
Lesson for California: Statewide pretrial reforms can spark big political fights, but the payoff can mean thousands of people able to return to their homes, families and jobs instead of waiting in jail before trial.
Mecklenburg County, North Carolina — population: 1.11 million
In 2014, Mecklenburg County, North Carolina, which includes the city of Charlotte, implemented its own pretrial reforms, which included risk assessment. This change was part of a larger criminal justice reform movement that successfully lowered jail populations. The county’s jail population fell by 11 percent between 2014 and 2017 even as the county added approximately 65,000 people.
A March 2019 study by MDRC analyzed the cases of more than 60,000 people in Mecklenburg County and found the policy changes resulted in a 21 percent decline in cash bail settings and a corresponding 26 percent increase in people being released on their own recognizance. Even while more people were allowed to return home before trial, court appearance rates and rates of new charges remained generally the same.
“[A]s Mecklenburg’s experiment has shown, detainment and release decisions should be informed by objective risks, have proven efficacy, and show preference for the least-restrictive government intervention possible,” wrote Arthur Rizer, R Street justice and civil liberties policy director, and Emily Mooney, R Street justice and civil liberties resident fellow and manager.
Lesson for California: Pretrial reforms can introduce fairness and prioritize safety for our courts while also helping to shrink jail populations.
Bernalillo County, New Mexico — population: 679,121
In 2016, New Mexico voters overwhelmingly approved a state constitutional amendment that prohibited holding people before trial because of unaffordable cash bail. In 2017, Bernalillo County, which includes the city of Albuquerque, took a major step away from cash-based bail and toward a risk-based system. The evaluations were only used to aid judicial discretion in cases involving felony charges. The policy change originally received local pushback — notably from the District Attorney’s Office, which wanted to make it easier to detain people before trial.
However, a Nov. 2019 study by the University of New Mexico’s Institute for Social Research found that, despite the criticism, the pretrial assessment was effective at predicting court appearance and new charges prior to disposition.
“This evaluation shows that the … Public Safety Assessment is doing what it was intended to do, which is be an accurate predictor of the risk of new criminal activity and failures to appear,” Bernalillo County Commissioner Maggie Hart Stebbins, chairwoman of the county’s Criminal Justice Coordinating Council, was quoted in the Albuquerque Journal. “And that has proven to be true.”
Fears that pretrial reforms would send crime rates skyrocketing were proven to be unfounded. And anecdotal reporting about the reform’s unintended consequences were not backed by hard data.
In fact, the report found that adhering closer to the pretrial recommendation “will likely improve the (failure to appear) and (new criminal activity) rates for assessed cases.”
Lesson for California: The plural of anecdote is not data. Critics of reform will fearmonger about individual cases, but research routinely finds it to be effective.