What the Measure Would Do

Proposition 25 is a referendum to determine whether or not 2018’s Senate Bill 10 should go into effect. (Implementation has been on hold due to this referendum.) SB 10 would significantly alter the state’s pretrial system, notably replacing the use of cash bail with a risk assessment system for determining the conditions under which defendants await their trials.

Under the current cash bail system, a judge determines an amount that a defendant must pay the court in order to be released from jail before their trial, and the money is returned after the trial is completed, no matter the trial outcome. Bail amounts are standardized countywide, and judges have some discretion to raise or lower the amount. If a person can’t afford bail, they can either turn to a bail bond provider, which will pay their bail at a fee (typically 10% to 15% of the bail amount), or they must await their trial in jail.¹

Under SB 10, money would no longer be a barrier to pretrial release. Instead, risk assessment tools would categorize defendants as low, medium or high in their risk for failure to appear in court and their risk to public safety. Judges would make a determination to release or hold a defendant based upon this assessment. Risk assessment tools arrive at a score by taking in a variety of data points, such as the defendant’s criminal history, job status and zip code. SB 10 does not specify which data points would be used in California’s risk assessments and assigns the state’s Judicial Council the responsibility to determine what factors will produce accurate and reliable results.

In addition to replacing money bail with a risk assessment system, SB 10 would significantly alter how the pretrial system operates. SB 10 requires the superior courts and the county’s chief probation officer to establish a program to manage the new pretrial system, including administering risk assessments, making recommendations for a defendant’s conditions of release, and providing pretrial services and supervision, such as case management, drug testing and transportation to and from court. Some counties, such as San Francisco and Santa Clara, currently provide pretrial services through independent, nonprofit agencies. SB 10 provides an exception for Santa Clara County to continue operating pretrial services under an independent agency but does not provide exceptions for any other county. Under SB 10, the scope of law enforcement in the pretrial phase would be much greater than it is under the current system.

The net fiscal impacts of SB 10 are largely unknown. The costs associated with establishing new processes for pretrial services, including the administration of risk assessments, are estimated to be in the mid-hundreds of millions of dollars annually between costs to the state and to local jurisdictions.² The potential long-term cost savings associated with decreases in county jail populations and other local and state tax revenue implications are being evaluated.

The Backstory

Ending the use of cash bail in the pretrial system has been a priority for criminal justice reform advocates in the United States for decades. Advocates argue that by setting a price for release, the cash bail system criminalizes those who cannot afford bail and forces others into extreme financial hardship, while letting wealthier defendants avoid those hardships. It also puts a costly and undue strain on jails: Over 60% of the California county jail population consists of pretrial detainees, many of whom are only in jail because they could not afford their bail. The cash bail system and the bail bond industry are largely unique to the United States; few other countries rely as heavily, or at all, on cash bail, and a nearly unregulated bail bond industry is only legal in the United States and the Philippines.

Throughout the majority of its life in the 2018 legislative session, SB 10 was supported by a broad coalition of criminal justice reform groups that aimed to supplant the cash bail system with an equitable pretrial system. However, late in negotiations, SB 10 was amended in significant and controversial ways, including increasing judicial discretion to incarcerate people before their trial. These amendments pushed many advocates to oppose SB 10 and, ultimately, to align with the bail bond industry in pushing for its repeal under Proposition 25. While these criminal justice reform groups continue to oppose the use of cash bail, they believe rejecting SB 10 will open up the possibility for better pretrial reform in California.

Backlash against SB 10 also stems from concerns regarding the use of risk assessment tools in pretrial evaluation. Research on these tools has shown that they should produce accurate determinations of risk. Studies on the tools in practice, however, have shown the assessments to be racially biased and inaccurate: In one examination of risk assessment scores administered to approximately 7,000 defendants in Broward County, Florida, the algorithm was twice as likely to falsely flag Black defendants as future criminals as compared to white defendants.³ This same study illustrated that risk assessments can produce largely inaccurate predictions: Only 20% of the people predicted to commit violent crimes actually went on to do so. The troubling results of this study and of many others are in part due to the nature of risk assessment tools and in part due to other factors such as the way they are designed, implemented and used by judges.

Since SB 10 does not specify what factors California’s risk assessment system would use, some argue that it can be designed to reduce or eliminate the racial biases and inaccuracies that have been reflected in tools used elsewhere. Others believe that the nature of an algorithmic system is inherently flawed and should not be the primary component of pretrial evaluation, as it is under SB 10. Ultimately, the impact that SB 10 will have on key outcomes in California such as pretrial detention rates, crime and racial disparities is unknown.

In the background of this debate is a California Supreme Court case, In re Kenneth Humphrey (Humphrey), that questions the constitutionality of the cash bail system. If Proposition 25 passes, then the use of cash bail will end in the state regardless of the decision on Humphrey. But if Proposition 25 fails, it is still possible that the California Supreme Court will rule that cash bail is unconstitutional, ending money bail in California. It is likely that the court will not make a determination on the case until after the election.

Proposition 25 is a referendum placed on the ballot through voter signatures and funded primarily by the bail bond industry. As a referendum, it must be on the ballot and requires a simple majority (50% plus one vote) to pass.

Equity Impacts

The equity impacts of this measure are widely disputed due to the inequitable nature and results of both the cash bail system and algorithmic risk assessments.

The cash bail system forces many people to await their trial in jail solely because they cannot afford bail.⁴ Being held in jail pretrial can result in the loss of child custody, a job or a home. Additionally, studies have shown that individuals who remain in jail pretrial are convicted at higher rates, receive longer sentences and are more likely to be arrested than comparable defendants who were released on bail.⁵ 

The devastating impacts of this system are disproportionately experienced by people of color. In California, our criminal justice system detains and arrests Black and Latino Californians at disproportionate rates. Consequently, Black and Latino Californians are more likely to be faced with the burden of posting bail, paying a nonrefundable fee to a bail bond provider or awaiting their trial in jail. Nationally, Black and Latino defendants are also more likely to have bail set at higher amounts than white defendants.⁶ 

Unfortunately, alternatives to cash bail may not do much to address these inequities. Algorithmic risk assessment systems have been shown to produce racially biased determinations of risk and to result in more people of color being held pretrial as compared to white defendants. The nature of these tools is arguably flawed because the data that feeds into them, such as criminal history and job status, is inseparable from the biases of the criminal justice system and our society at large. The algorithmic assessments provide an appearance of objectivity that may not be deserved. Other case studies have shown that risk assessments produce racially biased outcomes not because of the tools themselves, but as a result of differences in how they are administered and interpreted. When risk assessment tools were used in Kentucky in 2011, judges in predominantly white counties released more people pretrial than judges from more racially mixed areas.⁷

Pros

• Upholding SB 10 would put an end to the use of cash bail in California, which criminalizes poor defendants. Detaining people pretrial because they can’t afford bail is unjust and a significant waste of taxpayer money.
• Upholding SB 10 would eliminate the bail bond industry, which profits substantially off low- and middle-income families caught in an unjust system.
• Upholding SB 10 would open the door to amending the law in the legislature, which may be a more pragmatic approach: If voters reject SB 10, it’s possible that the legislature would not act on the issue of cash bail in the future.

Cons

• SB 10 gives judges significant discretion to detain defendants. This could result in higher pretrial incarceration rates, particularly in more conservative-leaning counties, compared to the rates under the cash bail system.
• Studies suggest that algorithmic risk assessment tools produce racially biased results and can produce largely inaccurate assessments.
• By assigning probation agencies with pretrial responsibilities, including the management of risk assessments, SB 10 increases the funding and scope of law enforcement at a time when there is a significant movement to realign resources away from law enforcement. This new structure would upend decades of successful pretrial reform efforts in San Francisco, where pretrial services are administered through a neutral, independent agency.
• It’s possible that repealing SB 10 could create new legislative opportunities to rethink pretrial reform and create a more just system.