While the presidential race dominates the national headlines, California voters will be casting their ballots for perhaps the single largest criminal justice reform ever put up for a popular election.
The referendum — Proposition 25 — will eliminate cash bail for the nearly 40 million people who live in California. The initiative has already begun to rack up early critical endorsements from across the political spectrum.
So far, Prop. 25 has earned editorial board endorsements from the San Francisco Chronicle, the Southern California News Group, which includes the Orange County Register, the San Jose Mercury News, and the Bakersfield Californian.
It is also supported by Gov. Gavin Newsom, a Democrat, Susan Shelley, a conservative columnist for the Southern California News Group, and Contra Costa County District Attorney Diana Becton — the first African-American woman elected to that position. The proposition continues to gain backing from a growing list of local political clubs and organizations from across the state, including the California Teachers Association, the SEIU California State Council, the League of Women Voters of California.
These endorsements are a sign of widespread support and impressive momentum coming into the peak of campaign season. And given California’s traditionally long ballots — there are 13 statewide referenda on the ballot in addition to local issues and elected offices — the public recommendations are critical for voters who can’t research every item or resort to usual Republican or Democratic divides to guide them.
“This is obviously an incredibly important issue, but it’s also quite complicated, and so having trusted validators speaking to this and endorsing the proposition really helps people understand this is something that has broad, bipartisan support,” said James Williams, Arnold Ventures' Vice President of Criminal Justice Advocacy. “Right now in this country there’s just so much noise that it's often hard to cut through, and in California in particular it can be confusing because it has such a history of ballot initiatives. By the time you vote for president, Congress, state Legislature and you get to the referenda, usually you’re pretty exhausted.”
Senate Bill 10 and Prop. 25
Prop. 25 originally began as Senate Bill 10, a 2018 law signed by then-Gov. Jerry Brown to eliminate cash bail and replace it with a risk-based system to shrink jails populations and better protect individual liberty. This bill upended the longtime status quo for pretrial detention, in which people are held in jail after being charged with a crime and have to pay bail money to the court or a bail bondsman in order to get out. Bail is intended to ensure that people don’t commit new crimes before trial or skip their court dates, but the reliance on cash just means that people who pose little flight risk or risk to public safety remain stuck in jail if they don’t have the money.
“The important thing for everybody to remember about the bail reform movement is that we’ve got hundreds of thousands of people behind bars simply because they can’t pay their way out of jail,” said James Cadogan, Arnold Ventures' Vice President of Criminal Justice. “Prop. 25 eliminates that — it eliminates wealth-based detention in California, which is the 6th biggest economy in the world and has 39 million residents who could no longer have to worry about whether or not they have to make a choice between putting food on the table or being able to pay for their or their family's bail money.”
In fact, on any given day in the United States, there are nearly a half-million people sitting behind bars who have yet to be convicted of a crime but can’t go home to their families, jobs and communities simply because they don’t have the cash necessary to make bail.
“Poverty is not a crime, but for people who are arrested and can’t afford bail, it is punished as if it were,” the Southern California News Group said in its endorsement.
Not only does this system punish people simply for being poor, but it also frees people who may pose a legitimate danger to the public or likelihood of skipping court because they’re wealthy.
SB 10 took personal wealth out of the equation and instead instructed judges to follow objective risk-assessment criteria when deciding whether someone should be detained in jail before trial.
On any given day in the United States, there are nearly a half-million people sitting behind bars who have yet to be convicted of a crime but can’t go home to their families, jobs and communities simply because they don’t have the cash necessary to make bail.
However, the bail bond industry, which makes millions in the cash-based system, fought this reform every step of the way and collected enough signatures to force a referendum. Now California voters have to approve Prop. 25 to finally eliminate discriminatory wealth-based bail system.
At a time when people are in the streets protesting for racial justice in the courts and law enforcement, California’s bail bond industry is actively working to preserve a cash bail system that perpetuates racism. In fact, a 2017 report mandated by state Supreme Court Chief Justice Tani Cantil-Sakauye found that money bail “exacerbates socioeconomic disparities and racial bias.”
“We’re at a referendum because of an active effort by the predatory bail bond industry that wants to preserve itself and preserve a system that bases people’s freedom on their wealth,” said Cadogan. “It makes no sense and we shouldn’t be here.”
Politics Makes Strange Bedfellows
The bail bond industry isn’t the only group fighting Prop. 25. In an example of the perfect being the enemy of the good, some civil rights and racial advocacy organizations have opposed the referendum not out of support for the cash-based system, but due to concerns about the risk-based replacement. Last-minute changes to the original SB 10 expanded judges’ discretion in detaining people pretrial, and there are worries that risk-assessment might perpetuate racial discrimination in the criminal justice system.
“We should always be concerned about the potential for racial bias because our criminal justice system has a history of bias riddled through every system and in our data, and that is still true today,” said Cadogan. “So concerns about risk-assessment and asking the question ‘how does this work and what does it do’ are always well-placed and appropriate. Where we need to be is doing the work of actually answering that question and saying, ‘Is this system going to make things worse, make things better, or are things going to stay the same?”
Some answers are already out there. In 2017, New Jersey replaced its money-based bail system with a risk-based system. Jail populations declined by more 43.9 percent over three years and racial disparity didn’t grow worse — but it didn’t get better, either.
Meanwhile, advocates are working to implement legislative improvements and changes to Prop. 25 that will help address these concerns.
“We don’t get it all in one day, and that’s a hard reality, but that’s OK,” Cadogan said. “This needs to be a collective and shared process over time, and Prop. 25 is one big step.”
Now or Never
Despite the opposition, the referendum is still expected to win.
“Californians will not be swayed by a for-profit industry spending millions of dollars to protect a system of money bail that takes away peoples’ liberty just because they don’t have enough money in their pocket,” said California state Sen. Bob Hertzberg, who authored and passed SB 10.
If Prop. 25 passes it will be a sign that eliminating cash bail is a winning political issue and lay the foundation for similar reforms across the country. The success of Prop. 25 will also shut down a revenue stream for the exploitative bail bond industry, a longtime supporter and funder of opposition to criminal justice reforms. If the referendum fails, however, those opponents could be emboldened and momentum for change in California and across the country could be brought to a halt. That would mean a continuation of a discriminatory wealth-based system that judges people on the content of the bank accounts rather than on their character.
“For years, California has proudly led the way on fundamental civil rights and criminal justice reform but, as we’ve witnessed first hand across our country, there’s more we must do to root out racial inequity and structural bias and to embrace proven reforms that work,” said Gov. Newsom. “This November, state voters will once again have the opportunity to make California a national leader in the unfinished fight for equity and justice.”