Criminal justice reformists who advocate for the abolition of cash bail are clashing on a California ballot measure that would achieve just that.

Proposition 25 upholds Senate Bill 10, a controversial initiative signed into law by Governor Jerry Brown in 2018. If it passes, California would be the first state in the nation to eliminate cash bail entirely, replacing it with a risk-based system that attempts to predict the necessity of pretrial confinement by weighing information about a person accused of a crime. But is the alternative any more desirable than the existing model?

Many proponents of Prop. 25 believe the measure is a step in the right direction to level our national scales of justice. The for-profit bail system in the United States benefits from economic misfortune and disproportionately impacts over-policed communities of color, who are far more likely than their white counterparts to be arrested and incarcerated pretrial. If a defendant can’t afford to make bail, they must either languish in a jail cell or pay a non-refundable fee to a bail bond agency, which will post bail on their behalf. This practice is fundamentally problematic, as the presumption of innocence under the law will not hold true so long as socioeconomic status controls a person’s freedom or imprisonment, regardless of their culpability.

Cash bail, which criminalizes poverty and reinforces structural racism, has no place in our criminal justice system. The alternative that Prop. 25 presents, however, is inadequate.

The technical flaws of risk assessment tools are difficult to reconcile with the concept of reform. These algorithms attempt to calculate a person’s risk of future misconduct by crunching demographic, socioeconomic, and criminal history data — data that provides a false sense of scientific validity and is affected by the racism inherent to the criminal justice system. Communities of color are subject to far greater surveillance and policing and are thus overrepresented in this data. This leads to the reinforcement of racial bias when employed in risk predictions. In other words, Black and brown people will be flagged as riskier than their white counterparts for the same offenses.

Even with the implementation of risk assessment algorithms, judges remain the final authority in pretrial detention decisions. All judges possess implicit bias — while the “good” ones are able to address their biases and account for them, some undoubtedly act on their assumptions. Judges are risk-averse, their jobs and reputations dependent on the viability of their decisions; Prop 25. would allow judges to order “preventive detention,” pretrial incarceration with no prospect of release and no meaningful due process constraints in felony cases.

According to Human Rights Watch, this “allows judges to hold people in jail who can’t afford to pay, and simply [removes] the payment option, giving judges practically unlimited power to hold people in jail with absolutely no way out.” Cash bail is hardly a positive facet of our justice system, but sometimes it is the only factor that keeps an individual out of jail.

Human Rights Watch is one of numerous progressive organizations — others include the NAACP, the ACLU of Southern California, and the Bail Project — that initially supported SB 10 before an amended version of the bill released in 2017 rendered it practically unrecognizable. While the original plan was for independent analysis and review of individual cases, the final version of the bill vested courts and judges with more power, effectively funding the criminal justice apparatus.

In a statement, ACLU of California lobbyist Natasha Minsker stated that “SB 10 needs to go further to be the model for pretrial justice and racial equity that we are working towards. Any model must include data collection that allows independent analysis to identify racial bias in the system, supports the use of independent pretrial service agencies recognized as the best practice in pretrial justice and ensures stronger due process protections for all Californians, no matter where they live.”

For progressives, supporting Prop. 25 could be seen as the obvious choice, but it is not the pretrial justice model that Californians should strive for. In reality, it offers a false sense of progress and reform while replicating the harms of existing bail practices.

SB 10 must be completely repealed in favor of an equitable pretrial system that eliminates cash bail without the use of tools that entrench the racial disparities of mass incarceration. It’s incredibly challenging to repeal legislation once it has passed, and Prop. 25 is inherently flawed.

Vote “no” on Proposition 25.


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