A referendum on the California ballot will abolish cash bail but increase preventive detention—splitting state progressives into pro and con camps.
In just three weeks, California could become the first state in the nation to abolish money bail when voters go to the polls to decide the fate of Proposition 25. Should the measure pass, Senate Bill 10, which then-Gov. Jerry Brown signed into law two years ago, will go into effect. As soon as the measure was signed, however, it was immediately stalled by the bail industry and its backers, which gathered the signatures to subject the legislation to a November 2020 referendum. A Yes vote on the measure will ratify Senate Bill 10 as a law; a No vote will strike it from the books.
The legislation was initially introduced nearly four years ago. Its authors sought to “reduce the number of people detained pretrial, while addressing racial and economic disparities in the pretrial system,” winning plaudits from liberals and progressives of all stripes for its blunt disavowal of money bail, a pretrial detention mechanism that is ineluctably racist and classist.
The forces behind the referendum are led, not surprisingly, by the bail bond industry, which has become a 21st-century behemoth. The two biggest backers of the bail industry, both multinational corporations, are worth a combined $50 billion. A council member of the American Legislative Exchange Council, the right-wing “corporate bill mill,” is chairman of the American Bail Coalition.
But the fight over Proposition 25 isn’t a straight-up battle between the industry and social-justice reformers. In fact, most of the activists in the End Cash Bail movement have joined the industry they despise in opposing the measure. They argue that the amendments that the bill’s authors were compelled to accept in order to get the bill through the legislature actually would make things worse for those accused of crimes. For their part, the authors say that if the law is upheld by the voters, it can be improved, while if it goes down this November, bail reform will be dead in California for the foreseeable future.
In place of cash bail, Senate Bill 10 ended up expanding the use of predictive algorithms, which movement activists say will condemn defendants to preventive detention. It will also widen judicial discretion in a state where judges currently set the highest money-bail amounts in the country. “There is a lot of support for ending money bail outright,” Ivette Alé, a bail abolitionist in Los Angeles, boiled down the case of the activists opposed to Proposition 25. “We want to end money bail,” she told me, “not give more power to the judiciary.”
Not surprisingly, the bail bond industry has made hay with the left’s opposition to the measure—indeed, it has co-opted progressive messaging about justice to argue that money bail should be a constitutionally guaranteed right. “Every time they try to use our talking points, we tell them to go fuck themselves,” Lex Steppling, an L.A.-based abolitionist, told me. But his anger, and that of the movement, is also directed at the measure itself. “SB-10 would fund law enforcement at an even greater scale and give them complete dominion over people’s lives,” he said. Many of the bill’s original sponsors—including the ACLU—agree.
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Supporters of Proposition 25 argue that the proposition is the only chance to end money bail—which in California averages $50,000. The legislative process took too much “political capital” to try reform again, says Assemblymember Rob Bonta, who co-authored the bill with state Sen. Robert Hertzberg. “This is our shot. Once there’s no money bail, then we can talk about how to perfect this system.” Moreover, he added, the legislature is generally loath to reconsider a reform that voters have defeated. “I just don’t see that happening,” Hertzberg said. “It has a chilling effect on the legislature.”
Proposition 25 is undeniably a “compromise,” Hertzberg said, but “the perfect cannot always be the enemy of the good.” The problematic “pieces of the law can be changed, and it can be changed so much more easily if we don’t have the bail industry and the insurance companies buying our politicians,” said Jess Bartholow, policy advocate at Western Center on Law and Poverty, an organization that supports the proposition and sponsored SB-10.
BUT THE BAIL INDUSTRY, parasitic as it might be, does not set money-bail amounts. That’s the judges’ prerogative. And California’s $50,000 average bail is more than five times the national average. Under the current money bail system, California’s administration of justice approaches farce, according to California judges themselves. In Orange County and Los Angeles County, for example, judges routinely underestimate how many people they detain, an academic study found in 2018. They also treat the bail schedule—a guideline for assigning money-bail amounts to a given crime—as unquestionable rules. “Individualized assessments, though permissible, are rare,” authors Sarah Ottone and Christine Scott-Hayward concluded. “Notably absent from bail hearings was any discussion of the defendant’s … ability to pay,” even though that consideration is required by law.
The forces behind the referendum are led, not surprisingly, by the bail bond industry, which has become a 21st-century behemoth.
“Somebody will come through,” one judge told the researchers, “and it’s Costco justice. They’re doing things really fast.” Efficiency is paramount for the administrators of a carceral state. “I don’t have much to do with bail,” another judge said. “I just follow the [bail] schedule.”
“This is not a process where everyone is treated the same,” a third said. “It’s not a perfect system, “but I’m not aware of a better way to do it.”
Proposition 25 is touted as precisely a “better way.” If it succeeds, California will “reduce incarceration,” according to Lenore Anderson, executive director of Californians for Safety and Justice, a sponsor of Senate Bill 10. “We’ll see a decline in the number of misdemeanors that are held pretrial.”
Misdemeanor detention may indeed diminish. One estimate, from the Public Policy Institute of California, found that 142,000 people accused of misdemeanors would be free. Using the PPIC’s data, the Judicial Council, the highest judicial rule-making body in the state, put the estimate at 120,000.
But the PPIC’s analysis isn’t definitive, as the authors acknowledge. The authors cannot estimate how many people will be “preventively” detained by a predictive algorithm, or whether judges will override the algorithm. And though SB-10 creates carve-outs for a number of misdemeanants, making them ineligible for algorithmic detention at all, there are ten broad exclusions—and the PPIC accounts for just five of them. Given judges’ consistent use of bail schedules as the rule, and not a suggestion, it is unlikely that algorithmic prediction will turn “Costco justice” into the real thing.
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Top judges played a central role in creating SB-10, and in splintering the early, broad coalition of supporters. The chief justice of California convened a year-long working group on “pretrial detention reform” and published recommendations for legislators in late 2017. “We took almost all of them,” Bonta said. Hertzberg confirmed the Judicial Council’s considerable influence over the drafting process. “Gov. Jerry Brown basically said, ‘Look, I need the support of the courts. I need the courts to say yes.’”
“Pretrial release decision-making is a judicial function,” Shelley Curran, director of Criminal Justice Services at the Judicial Council, told me, suggesting that the judiciary deserved influence over legislation it would ultimately administer. In the end, the judiciary didn’t merely give advice. It wrote SB-10. In consequence, Proposition 25 is more than a referendum on money bail. It’s a chance to expand the power of the courts and law enforcement.
MONTHS AFTER THE JUDICIARY released its recommendations in 2017, grassroots and radical supporters of SB-10 stopped hearing from the sponsors and authors, whom they had spoken with regularly during the drafting process. They knew the bill had been rewritten but didn’t know how; they were simply told to continue building a movement for SB-10. “That’s hard to do when you don’t know what bill you’re supporting,” one source familiar with the negotiations told me. From early 2018 until that August, none but the closest advisers to SB-10 knew about the changes to the bill. Not even “key assembly members and state senators” knew the bill had changed, John Raphling, senior researcher at Human Rights Watch, told me. But it had: It was a “bait and switch,” three sources said.
The language of reducing incarceration and confronting racism and classism disappeared. The revised bill expanded preventive detention and removed safeguards for predictive algorithms. The ACLU, one of the most deeply involved sponsors of the original bill, announced its opposition to the legislation days before Brown signed it into law.
Progressives’ misgivings begin with predictive algorithms known as “risk assessment” instruments, which produce “risk” scores for the accused, based on their history of arrests, convictions, and missed court dates. It matches their histories to similar ones, measuring how a given set of defendants might act in the future. The algorithms are, in short, profiling tools.
Progressives’ misgivings begin with predictive algorithms known as “risk assessment” instruments, which produce “risk” scores for the accused.
Already employed in one-third of American counties, these algorithms rely centrally on defendants’ prior record and, to a lesser degree, are proxies for poverty. They measure contacts with police, not “risk.” If a defendant previously pled guilty in the face of high money bail, which is common in California, that conviction will increase the score.
“These technical problems cannot be resolved,” reads an open letter from 27 criminal justice experts at MIT, Harvard, and other schools. A copy was delivered to Hertzberg, Bonta, and the Judicial Council. A similar letter from 119 advocacy groups says: “Pursue pretrial fairness and justice without adopting such tools.” The ACLU and the NAACP are signatories.
As of September 2017, 50 of California’s 58 counties already had algorithms on hand. They were not mandatory then as they would be if the proposition succeeds. Some are designed by corporations, like the COMPAS, which is used in L.A. County and San Diego County—the two most populous jurisdictions in the state. The COMPAS’s factors are a trade secret, though the tool does use a 137-part questionnaire that asks defendants questions like whether a hungry person has the right to steal.
Probation departments will be responsible for algorithmically “assessing” defendants. Their funding will increase accordingly, as the Judicial Council recommends. The measure will create more union jobs for probation officers, one reason why the Service Employees International Union, which represents many of the state’s probation officers, has supported the measure.
Though leaders of the Chief Probation Officers of California have indicated that the current algorithms discriminate on the basis of race and class, a new state law, which they cite approvingly, requires that algorithms be tested regularly, or “validated,” for bias. “No one I talk to even knows what ‘validation’ means,” Colin Doyle, staff attorney at Harvard Law’s Criminal Justice Policy Program, told me. “Any time you develop a machine-learning algorithm,” he explained, it’s trained on a data set—for example, a set of peoples’ prior records. It produces a correlation: O f the people with a certain kind of record, how many are re-arrested or miss court appearances? Validation merely “asks whether the general trend holds” on a second data set. “It doesn’t justify using the tool.” If policing is racist and classist all around, the validation tests won’t reveal any injustice.
AFTER THE LAST-MINUTE amendments were made to Senate Bill 10, its top line read, “It is the intent of the Legislature … to permit preventive detention of pretrial defendants.” That language never appeared in earlier drafts.
Legally innocent people cannot be “preventively” detained merely because a judge believes they are a risk to “public safety.” First, the defendant must get a robust hearing, where their counsel and the prosecutor present evidence and cross-examine the opposition. If Proposition 25 succeeds, the algorithm will present the evidence of “risk,” virtually bypassing defendants’ procedural rights.
Legally innocent people cannot be “preventively” detained merely because a judge believes they are a risk to “public safety.”
“Initially, we were strong supporters of the bill,” Stephen Munkelt, head of California Attorneys for Criminal Justice, told me. Now the organization opposes Proposition 25. “Preventive detention is not allowed except in these very narrow [circumstances] established in the Constitution.” Under SB-10, defense attorneys will likely have to object to “risk” scores that have a veneer of objectivity. When an algorithm is used, he continued, the judges’ presumption will likely be in favor of detention. “We are very confident that if [the courts] have this tool, the number of people held in jail pretrial will go up, not down,” Munkelt said.
Curran, the Judicial Council member, dismissed the argument that SB-10 subverts the presumption of innocence. “I’m always left scratching my head when people come out and say the presumption of innocence has been flipped,” she said. “A much greater, more fundamental problem is if somebody, a low-income person, is detained, they’re at risk of losing their job only by virtue of the fact that they can’t meet bail.”
Proposition 25 forces voters to choose between these two analyses.
Progressive opponents of Proposition 25 acknowledge that if they succeed in derailing the measure, securing a better reform won’t be easy. “I don’t kid myself to say it’s going to be easy to push a better reform,” one activist admitted. “It’s not. It’s going to require work.”
“The reason SB-10 even came about,” Raj Jayadev, co-founder of a bail abolition and anti-discrimination group, told me, “was because of the political pressure from communities on the ground.” That pressure, he said, would continue to mount until their goals are met.
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