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Law and Justice

Cash Bail Survived The Ballot, But California Reformers Say The Battle To End It Isn’t Over

Bail bonds - Nixon.jpg
Andrew Nixon
Downtown Sacramento, Oct. 10, 2018.

Proposition 25 asked voters to uphold or overturn legislation passed in 2018 that would have banned cash bail.

The California bail bondsman lives to see another day.

With upwards of 15 million votes counted, Californians rejected Proposition 25 by more than a 10 percentage points.

“The voters of California understood the constitutional right to bail themselves out of jail was not a good thing to get rid of,” said Topo Padilla, president of the Golden State Bail Agents Association and owner of Greg Padilla Bail Bonds, the business his father started in 1979.

As the only referendum on the ballot, Proposition 25 asked voters to uphold or overturn legislation passed in 2018 that would have banned cash bail. The legislation proposed a new system: Judges would take a holistic look at a defendant’s history when deciding whether to release them from jail before trial.

While voters opposed Proposition 25, some still see room for chipping away at cash bail, or even eliminating it entirely. That includes progressive groups that opposed the measure, arguing it did not go far enough.

Proposition 25 traces its roots back to Senate Bill 10, introduced by Sen. Bob Hertzberg (D–Van Nuys) in 2018. The bill would have made California the first state in the country to abolish cash bail; Washington D.C. had also taken this step.

But in order to get it passed, the legislation was substantially amended partway through the session, giving judges more control over a defendant’s release.

“Governor Brown told us, ‘Here's what we want. You want a signature? This is what we need,’” Hertzberg recalled.

But some supporters of the original bill took umbrage over judges relying on an algorithm to help determine whether a defendant should be released before trial. The algorithm used biographical data — including age, education level and criminal history — to determine a person’s risk.

Alicia Verani, a criminal justice researcher at UCLA, says that’s problematic because some of the data could be inherently biased.

“If we're inputting past arrests into an algorithm and we know that law enforcement targets certain communities, then really it's only going to be a reflection of police behavior and not actual behavior of the individual,” she said.

That led some civil rights and criminal justice reform groups, including the NAACP and Human Rights Watch, to oppose Proposition 25.

“The factors that they’re using [for the algorithm] reflect racial and class bias within our society overall,” said John Raphling is a senior researcher on criminal justice at Human Rights Watch. “They’re unavoidably discriminatory.”

Raphling advocates for more dramatic changes than what was passed under SB 10, arguing that the law would have continued to unfairly jail criminal defendants before trial.

“People who are held in custody while waiting to resolve their case plead guilty quickly,” he said. “It contributes to the efficiency of the prosecution and conviction creating machine.”

Hertzberg says all that fuss over the algorithm is bunk.

“We said there has to be a panel, which included an expert on bias to validate” the algorithm, he said.

He also argues that judges would only use the algorithm as an aide to make their assessments of a defendant’s risk — not rely on it completely.

But those safeguards weren’t enough to win over progressive advocates — and ultimately, perhaps, voters.

Now the post-Proposition 25 strategizing begins: Referendum supporters are trying to figure out ways to tactically chip away at cash bail; progressive civil rights groups want to see a whole-hog replacement; and bail agents are hunkering down, knowing this won’t be the last attack against the industry.

“Temporarily, we're feeling pretty good,” said Padilla, the Sacramento bail bondsman and state association leader. “We know sure well that the very progressive people in this state and in our legislature are going to come at us again.”

There are legal limitations to what lawmakers can pass, since voters have already rejected the reforms under Proposition 25.

Raphling says lawmakers couldn’t pass another bill that mirrored SB 10, but they could take up a more substantial overhaul of the bail system.

Hertzberg says that’s unlikely in the Legislature.

“I think our bandwidth is very limited in terms of what we can do” after a referendum, he said.

But Hertzberg believes there may be opportunities to chip away at cash bail through piecemeal legislation. Last year, he introduced a bill to extend consumer protections to people who secure bail, similar to protections offered to credit card or mortgage customers. The legislation stalled, and Hertzberg says he’s still considering whether he’ll reintroduce it.

Another option is to pass a law that standardizes and reduces the bail schedule in order to make it more affordable. It’s an idea that could have support from the bail industry, according to Padilla.

If lawmakers don’t take action, reform could come from the courts.

A closely-watched petition before the state Supreme Court argues that in order to set bail, judges should consider a defendant’s ability to pay.