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Opinion: Proposition 25’s failure gives legislators opportunity to reform cash bail system

Proposition 25 would have replaced California’s current cash bail system with equally discriminatory risk assessment tools that determine whether individuals should be released from pre-trial detention. Voters rejected the ballot measure, giving state legislators the perfect opportunity for systemic reform. (Emily Dembinski/Daily Bruin senior staff)

By Navdeep Bal

Nov. 23, 2020 10:34 p.m.

In our criminal justice system, everyone is innocent until proven guilty – unless you’re poor.

The current cash bail system disproportionately burdens poor people who are forced to wait weeks, months, or in the case of then 16-year old Kalief Browder, years for their trial.

A 2020 report by the Prison Policy Initiative found that on any given day, over 555,000 people across the U.S. are held in pretrial detention. Many are detained simply because they cannot afford to post bail. The median amount for bail for felonies is $10,000, which is equivalent to eight months of income on average.

Spending just a few days in jail could result in losing one’s job or custody of one’s children. Some defendants may even feel coerced to plead guilty as their quickest way out of jail. On average, bail amounts are set 35 and 19 percent higher for Black and Latino men, respectively, compared to white men for similar crimes.

Earlier this month, Proposition 25, which would have replaced cash bail with a risk assessment algorithm, failed with an unofficial vote count of 56.4% “no” votes to 43.6% “yes” votes.

However, the failure of Proposition 25 does not mean the end of reform. California has an opportunity to listen to civil rights advocates and create a truly just system that isn’t reliant on discriminatory tools. The cash bail system must come to an end – and now is the perfect time to do so.

The risk assessment tool would have determined the likelihood of a defendant returning for their court appearance, as well as their risk to public safety. Besides certain exclusions, all people booked on misdemeanor charges would be released in twelve hours. Those arrested on felony charges would be categorized as “low risk,” “medium risk” and “high risk,” with the judge making the final decision.

However, many civil rights groups, including the National Association for the Advancement of Colored People and Human Rights Watch, opposed the reform because they believed the algorithms would result in increased funding for law enforcement and greater pretrial incarceration.

After all, the algorithms would be based on a racially-biased criminal justice system and could perpetuate the same inequalities as the cash bail system. In 2018, researchers found that black defendants were wrongly stated by one tool, COMPAS, as being at risk of committing a misdemeanor or felony in two years at a rate of 40%, compared to 25.4% for white defendants.

However, that is not to say that risk assessment tools cannot be reformed.

Because of this, Bruin Democrats endorsed Proposition 25 cautiously.

“Risk assessments may be extremely problematic as they were spelled out in (Proposition) 25, but we have faith that risk assessments can be reformed to be less racially inequitable,” said Evan Farrar, a third-year public affairs student and president of Bruin Democrats. “We thought it was definitely a step in the right direction.”

In 2018, the state legislature approved the algorithm system in Senate Bill 10. However, the multibillion-dollar bail industry qualified a referendum to put the law on hold until it was approved by voters this year.

The bail industry pumped over $10 million into a campaign to defeat Proposition 25.

“What the legislature now has to do is go back to the table and see if they can craft another bill that can work on behalf of all Californians, rich or poor, so that we have a more fair system and we’re not incarcerating people simply because they’re poor,” said Alison Regan, a UCLA law lecturer.

In the pending case, the California Supreme Court will decide whether or not to uphold the decision made by California’s First District Court of Appeals, which ruled that setting a monetary bail at an amount that a defendant cannot pay is unconstitutional.

Diane Birnholz, a UCLA law lecturer, said that if the decision is upheld, then a person’s ability to pay would be taken into consideration.

“If someone has been fined, and say they can’t pay that fine, you can’t turn their inability to pay a fine into a jail sentence,” Birnholz said. “If you set someone’s bond or bail so high that they have no ability to pay it, you’re basically ordering them into custody.”

Regardless of the Court’s decision, the choice is clear: The cash bail system must go. Legislators must take the concerns of civil rights groups seriously in order to create a system that is not equally biased. If they decide to tackle risk assessment again, this begins by clearly outlining and researching the numbers the algorithm will be based on. The bail bond industry also cannot dominate the conversation with its deep pockets.

Civil rights advocates have different opinions about what reform should look like. A model by JusticeLA pushes for a presumption of innocence, with only those accused of violent felonies being detained after rigorous hearings. However, most groups agree that poverty should not be criminalized.

For those worried about the cost of reforming the bail system, the Pretrial Justice Institute found that U.S. taxpayers spent $140 billion annually in pretrial detention. Decreased incarceration would save taxpayer money, and more importantly, lives.

Freedom should not have to be bought.

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