This week we are continuing our examination of state proposition that did not go the way we recommended in the November 2020 election. A couple of weeks ago, we looked at Proposition 16. This week we are looking at Proposition 25. 

The state Legislature approved a new system that would eliminate cash bail, in Senate Bill 10 in 2018, but the multibillion-dollar bail industry, which represents some 2,500 bail agents in the state, qualified a referendum that put that law on hold until voters could decide whether to approve it.

In response, organizations opposing cash bail put forward Proposition 25 on the November 2020 ballot.

Proposition 25, which failed 55%-44%, would have made California the first state to end cash bail by allowing each county to use an algorithm to assess a person’s flight risk or likelihood of reoffending while awaiting trial. Supporters pitched the referendum as the legislature’s best plan for advancing racial justice by upending a system that preys on communities of color for profit. 

Opponents of Proposition 25 included, predictably, the bail industry and law enforcement groups, along with several racial equity and criminal justice reform organizations who spoke out against the measure.  
 
According to Rubicon Staff Attorney Sarah Williams, who was a member of the panel that wrote the Rubicon voter guide and recommended supporting 25, criminal justice reform organizations were divided on Prop 25 from the beginning. At issue were the risk assessment tools that would have been used to determine an individual’s likelihood to flee or reoffend.  

“There were legitimate concerns that these risk assessment tools could lead to an increase in incarceration across the state, and particularly an increase in incarceration for Black and Brown folks. Historically, the risk assessment tools have been racially biased, and there was no evidence to show that these tools would be any different,” Williams said.  

According to Williams, SB10 at first contained more robust oversights against racial bias, but these oversights were compromised in order to get SB 10 passed in the legislature. This is when organizations such as the ACLU came out against SB 10. Because Prop 25 would have enacted SB 10, these same concerns persisted. 

 “While organizations we trust, like the California Public Defenders Association and A New Way of Life Reentry Project, supported Prop 25, several racial equity and criminal justice reform organizations did not. For example. the Bail Project, Human Rights Watch, and Essie Justice Group opposed Prop 25. There were legitimate concerns that these risk assessment tools could lead to an increase in incarceration across the state, and particularly an increase in incarceration for Black and Brown folks,” Williams said.  

There was also concern that the newly created Pretrial Assessment Service would increase surveillance and supervision of people who have not been convicted of a crime, and lead to an increase in funding for law enforcement. Lastly, these organizations were concerned about giving so much discretion to judges. “In my opinion, these legitimate concerns, combined with funding from the bail industry, led to Prop 25's defeat,” Williams said.  

The fight to end cash bail is far from over. The focus is shifting to the Supreme Court of California, where civil rights groups will argue that it is unconstitutional to continue a system that favors people who have money and punishes those who don’t. That case could allow the court’s seven justices to order their own reworking of the bail system, perhaps as soon as the next several months.