California’s pretrial reforms will result in fewer people detained before arraignment even in jurisdictions that already have progressive pretrial policies, according to a new report by the California Policy Lab.
This report comes as a bombshell as voters decide whether to approve the reforms by voting yes on Proposition 25.
The reforms — originally passed in 2018 as Senate Bill 10 — eliminate the discriminatory system of cash bail and instead have judges rely on pretrial assessments to help them determine whether people should be detained before trial.
These changes have been opposed by the for-profit bail bond industry and the insurance companies that finance it, and they successfully placed Prop. 25 on the November ballot in an attempt to overturn the reform. However, left-leaning organizations have also expressed concern that relying on pretrial assessment may be worse than the status quo and exacerbate racial disparities in the criminal justice system.
This report indicates that those concerns are misplaced.
“Referenda elections don’t usually have an October Surprise,” said Arnold Ventures Vice President of Criminal Justice Advocacy James Williams. “This is the sort of thing that can really change minds at the last minute to vote yes on Prop. 25.”
Different Counties, Similar Results
The report specifically analyzed data on bookings in San Francisco and Sonoma County from 2017 and 2018. The two counties operate under differing pretrial systems, so studying them side-by-side takes a broader look at the potential effects of the pretrial reforms. For example, San Francisco already relies on the Public Safety Assessment for pretrial release and only assessed bail for a small portion (12 percent) of cases in the years studied. Sonoma, on the other hand, used its own pretrial assessment and still largely relied on cash bail during the two years — assessing it in 43 percent of cases.
Using case-level information, researchers from the California Policy Lab worked to determine the impact on the two jurisdictions if Prop. 25 had been in place.
The answer: Fewer people would have been held behind bars, with Black Californians specifically benefiting from increased release rates — though some racial disparities remained.
“Based on our research, we expect to see increases in releases prior to arraignment even in counties that have already implemented some of the reforms in advance. The scale of releases will depend on the decisions that stakeholders, particularly prosecutors, make in each county as they implement the law,” said Dr. Johanna Lacoe, a co-author of the report and Research Director at the California Policy Lab, in a press release.
The study specifically found that under SB 10 the share of cases eligible for release prior to arraignment would increase from 44 percent to 59 percent in San Francisco and 63 percent to 66 percent in Sonoma County. This spike in releases would largely be among people gauged as low-to-medium risk of new criminal activity or failing to appear in court.
“When we applied the release guidelines from the new law to all of the cases in these two counties, we found that overall, more people would have been released prior to arraignment,” explains Alissa Skog, a co-author of the report and Senior Research Associate at the California Policy Lab, in a press release. “Further, the overall increase in pre-arraignment release under Prop. 25 is driven by an increase in releases for low-risk individuals.”
In both counties, nearly all people assessed as a low-to-moderate risk of committing a new crime or missing a court date would be released prior to arraignment under Prop. 25. This is an improvement over the status quo. In Sonoma, 91 percent of these individuals would be released — in contrast, only 65 percent were actually freed. And in San Francisco, 85 percent of people assessed as low-to-moderate risks would be released, in contrast to 57 percent under current law.
“Hundreds of people who were stuck behind bars could have gone home if the counties had implemented the pretrial reforms already passed by the California Legislature,” said James Cadogan, Arnold Ventures’ Vice President of Criminal Justice. “It is critical that California vote yes on Prop. 25 to end this discriminatory system of wealth-based detention that holds people behind bars — away from their jobs, families and communities — even if they pose little threat to public safety. The only people who benefit from the status quo are members of the for-profit cash bail industry and their financiers.”
The study also found that most people released under the wealth-based detention system would still be released before trial under Prop. 25. Furthermore, the average amount of time that people would have to wait in custody before being released would generally go unchanged — researchers determined it would have minor changes in San Francisco and fall by 11 hours in Sonoma County.
Racial Disparities Narrow
While the report found Prop. 25 increased the pretrial release rate for all racial and ethnic groups, the growth was significantly higher for Black Californians. For example, in San Francisco the overall release rate climbed by 15 percentage points but increased by 18 percentage points for Black individuals — from 35 percent to 53 percent. In Sonoma County the release rate went up by three percentage points overall but climbed by seven for Black Californians — from 53 percent to 60 percent.
“The U.S. criminal justice system remains stained by a history of racism and we should always be concerned about the potential for racial discrimination,” said Cadogan. “This report by the California Policy Lab shows that pretrial assessment can be part of reforms that free people from jail without exacerbating the racial gap.”
However, while Prop. 25 benefits Black Californians involved with the criminal justice system, the reforms do not completely close the racial gap. The study found that Black individuals would still be between seven to ten percentage points less likely to be released prior to arraignment than Latinx and White individuals. As the report notes, SB 10 was never designed to directly address racial and ethnic disparities in the pretrial system. The benefits stem from standardizing part of the release decisions in a way that reduces racial and ethnic bias in the system.
“Voting yes on Prop. 25 moves the state in the right direction,” said Williams. “But perhaps just as importantly, it deals a major blow to the for-profit bail industry that has opposed so many other reforms. With that political barrier out of the way, who knows how much further California can go?”