California Defeated the Bail Ballot, Unsure of What’s Next
The group behind the “no” vote on Proposition 25 wasn’t against it because they like the state’s cash bail system. They just wanted to enact reform from the ground up. But now there’s uncertainty about what happens next.
Jason Pohl, The Sacramento Bee | November 6, 2020 | Analysis
(TNS) — Lex Steppling and his team of criminal justice activists knew they wanted to undo California’s law abolishing cash bail. They said it would merely replace one oppressive system with another, worsen racial inequities and give too much power to algorithms and judges.
They were convinced they were right. But he didn’t think they’d actually defeat Proposition 25 — especially not by a nearly 11-point margin.
“We didn’t expect to win, let alone win by so much,” Steppling said in an interview. “I’m still wrapping my head around that part.”
The victory marked a surprising end to an unlikely marriage between an extreme “abolitionist” wing of the criminal justice reform movement and California’s billion-dollar bail bond industry. Traditionally enemies, together they undid a years-long effort from the California Legislature that could have created one of the most significant justice system changes in a decade.
The longstanding system of cash bail will remain in place indefinitely. As Steppling and others say they plan to push for county-by-county changes, the type of top-down change that would have followed Proposition 25 is on hold as uncertainty sweeps through the now-fractured criminal justice reform movement.
Advocates said Wednesday they were “poised to build our system anew.” But those advocates are facing severe criticism, including from more moderate justice reformers. They’re also feeling the pressure of a familiar problem: Once something is repealed, what exactly do you replace it with — and how?
Steppling is the co-chair of the No on Proposition 25 campaign and an advocate with Dignity and Power Now, a Los Angeles nonprofit that has sued the sheriff’s office over jail conditions, rallied against new jail construction, and pushed for taking funding away from police departments. They want to see radical, grassroots improvements to the justice system.
“Our fixation is not simply on bail,” Steppling said, criticizing the existing power that judges and police have. “We want to make a transformative change that disables the drivers of pretrial incarceration.”
Proposition 25 — and SB 10, the legislation it was a referendum on — came after years of work in the California Legislature to make that change. Besides doing away with cash bail, it would have brought mandatory audits to measure racial biases. The changes, which lawmakers could adjust as needed, could have opened a window into an often opaque system of justice where little information about cash bail bonds is ever made public.
By Thursday evening, roughly 55.6 percent of the counted vote was in support of keeping the current cash bail system indefinitely. No county south of Santa Cruz in the Bay Area supported Proposition 25. It was a resounding defeat and in sharp contrast to two other justice system measures that passed — one expanding voting rights to people on parole and another blocking tough-on-crime proponents’ plan to make stiffer penalties for low-level offenses.
“It was a case of the kind of far left and far right converging and not a lot of space left in the middle to get rid of cash bail,” said Keramet Reite, a criminologist at UC Irvine.
Proposition 25’s failure will likely cast a long shadow on justice reform in California. Lawmakers are barred from taking another crack at cash bail that is similar to the one voted down Tuesday. They might also be hesitant to take it up again, saying the voters have already spoken.
That has longtime advocates on edge.
“You fear what you think you can’t change,” said Sam Lewis, head of the Anti-Recidivism Coalition, among the most active criminal justice reform organizations in California. Lewis, who was released in prison in 2012 after serving 24 years, was among the fiercest supporters of Proposition 25. He said he thought the killing of George Floyd would have made people want to dismantle the system now more than ever.
“Instead,” Lewis said, “we kept a system that’s steeped in racism and criminalizes poor, black and brown people because we were afraid.”
What Happens Next?
Steppling’s organization says it has a plan to improve the jail system from the ground up. It’s unclear how exactly that plan would roll out and how much it could be deployed in counties across the state.
The replacement, he said, “does not begin and end in Sacramento.”
“If we let our sense of possibility be mediated by electeds, we would never get anywhere,” Steppling said. “We have to create a roadmap to something different, and then actually organize and do that work and build community pressure.”
Steppling said his group will work to replicate programs in other places like the one they helped push in Los Angeles County calling for jail diversion programs.
County-by-county, they plan to push a plan called Preserving the Presumption of Innocence. The plan calls for non-law-enforcement groups to evaluate people’s risk, counties to collect better data, and law enforcement to only detain people accused of serious or violent felonies. It is modeled, in part, from the bail reform law voters shot down Tuesday.
Sen. Robert Hertzberg, D- Los Angeles, who wrote SB 10 and has championed bail reform, was unconvinced that Steppling’s work would be successful. He said his yearslong effort that culminated with Proposition 25 was, in fact, a grassroots effort with people across the state. It prompted new county-level public safety assessment programs and was the type of sweeping change to state law that is needed for a broken system.
“The only way to solve this is at a statewide level,” he said. “You can’t fix the bail system on a county by county basis. It just doesn’t work. It has no legal authority.”
State-level bail fights aren’t over. The California Supreme Court has a case pending that would force judges to consider a defendant’s ability to pay bail before setting it. The Humphrey case could force a reckoning about how high bail is set, eroding some of the industry’s profits. It’s why Hertzberg said that, despite Proposition 25 failing, the bail industry “is on life support and the oxygen is running out of their tank.”
Any grassroots successes would also be scattered, said Jonathan Simon, a professor at UC Berkeley who studies law enforcement and was against Proposition 25. A so-called progressive prosecutor movement, like in San Francisco and Los Angeles along with other local reforms in the years since public safety realignment could prompt the kind of change Steppling described.
San Francisco District Attorney Chesa Boudin has committed to new policies targeting racial disparities in the justice system that include ending gang enhancement charges and charges where police find contraband through “pretextual” traffic stops. And in Los Angeles, George Gascón is leading in the race to head the largest district attorney’s office in the country on a progressive platform that includes eliminating cash bail.
“There’s plenty of opportunity for bail reform at the local level,” Simon said. “Counties can decide to adopt some level of this.”
It also means that conservative counties, such as Kern in Southern California or those in the north state — can ignore the changes altogether, indefinitely.
“That’s going to mean that some counties have some really regressive arrest and bail policies,” Simon said.
A Long Fight to Tuesday
For decades, California lawmakers have mulled ways to dismantle the cash bail industry, which is seen widely as unfairly harming lower-income families and people of color.
Judges generally follow what’s called a bail schedule, a preset grid that has dollar amounts attached to specific crimes. Those who do not have the money to post bond wait in jail for their case to end, whereas those with resources can get released.
Bail bond companies fill the gap in the middle for people who don’t have thousands of dollars on hand to pay to get out. Bond companies charge a fee — typically 10 percent — and arrange with the courts to have the defendant released from jail. The money is nonrefundable.
“We do not want bail being used as a form of punishment,” said Topo Padilla, president of the Golden State Bail Agents Association who has long said the problem is not with his industry but with local justice systems. “We do not want bail to be used to keep people in jail longer.”
Research has found minority communities and even families of domestic violence survivors can end up bearing disproportionate costs of cash bail. A Sacramento Bee investigation last month found that domestic violence survivors are paying cash to get their family members released from jail — a cruel twist in a pandemic that has devastated local economies.
Former Gov. Jerry Brown signed a bill into law in August 2018 that would have brought a sledgehammer to the system. To address concerns from groups like Steppling’s about racial bias in the risk assessments, lawmakers passed SB 36. They vowed to keep chipping away at the system to make things just and fairer.
Hertzberg wrote the 2018 law and last year’s addition aimed at repairing a broken system that benefits the bail industry.
“It may not be perfect, but we have the ability to come in and fix it. Let’s just get rid of the bail industry,” Hertzberg said in an interview Wednesday. “As much as they wanted to say they were for justice, they were for greenbacks, they were for money. That’s all they cared about. And that’s their business, I understand it, but it doesn’t make it right.”
That system fought back. Faced with the prospect of being outlawed, the state’s 3,200 licensed bail bondsmen and 7,000 employees gathered signatures for a referendum. With ample support from other groups, they collected enough signatures to put the future of the law up to the voters.
Soon came the unlikely marriage.
“Proposition 25 was not going to help get people out of jail, it was going to keep people in jail,” Steppling said. “And in some cases, many cases, thousands of cases, keep people in jail with no way out.”
“It was truly an honor to fight shoulder to shoulder with civil rights groups and law enforcement against this misguided legislation,” Jeffrey J. Clayton, Executive Director of the American Bail Coalition.
Reliable research about the effects of bail reform is hard to come by, in part because getting access to data is so fragmented.
But Heather Harris, a researcher at the nonpartisan Public Policy Institute of California who has extensively studied bail said roughly 11 percent of Latinos and 2 percent of African Americans would have likely been released sooner than they currently are.
While some people might have been detained slightly longer, the vast majority of suspects would have been released faster — risk assessments could propagate existing inequities, but those could be mitigated with other policies.
“Although our research does not address the question of whether risk assessment would have led to racially biased pretrial release decisions,” Harris reiterated Wednesday, “it does indicate that replacing money bail with a structured release process, would have mitigated some racial disparity in pre-arraignment release.”