WHAT IS PROP 25?
Prop 25 is a ballot measure that would make SB10 the law. SB10 was a backroom deal between judges, politicians, and probation department unions to remake the pretrial system in California courts. It ended money bail as a way for people accused of crimes to get out of jail and gave judges unprecedented power to incarcerate them with little due process of law. It requires courts to use racially biased algorithms to help decide who is jailed and who goes free. It gives probation departments power to monitor and supervise innocent people who have only been accused of crimes.
HOW DOES THE CURRENT PRETRIAL SYSTEM WORK?
When a person is arrested, there is a bail amount based on their charge. If they can pay, they can get out. If not, they stay in jail. A judge can change the amount or simply order a person released once they get to court. Prosecutors request bail in part because people in jail are more likely to plead guilty without fighting their cases. Judges impose bail to keep people in custody and so they will plead guilty quickly.
WHAT WILL PROP 25 DO IF WE VOTE YES?
If Prop 25 passes, there will be no bail amount set. Instead, a computerized algorithm will decide if a person stays in jail after arrest, based on an estimate of the person’s risk of missing court or being arrested again. When the arrested person gets to court, the judge can decide, based in part on what police say and in part on what the algorithm says, to keep the person in jail with no possibility of release. The judge has complete discretion to jail people and people have little due process rights. Probation departments will supervise and monitor people who are released, and impose conditions of release including electronic monitoring like ankle bracelets.
WILL ENDING MONEY BAIL MEAN THAT COURTS WILL TREAT POOR PEOPLE FAIRER?
Prop 25 ends money bail, but allows judges to jail people with no recourse. Poor people will continue to be locked up pretrial. The risk assessment tools that inform these decisions are biased against poor people, as poverty and likelihood of contact with police increase the risk factors that the algorithms measure. While wealthy people will not be able to pay for release through bail, Prop 25 allows their lawyers opportunities to influence the detention decision in ways that poor people with appointed lawyers will not be able.
DOES PROP 25 HARM BLACK PEOPLE AND OTHER PEOPLE OF COLOR?
Just as the risk assessment tools discriminate against poor people, they discriminate against Black and brown people. The tools generate profiles by taking certain facts about an individual out of context and comparing those profiles to a large number of people with similar profiles. The factors they analyze, including arrest history, employment, housing stability, education, reflect societal inequality, especially bias within policing and the criminal legal system. They operate similar to “red-lining.” They essentially automate racial profiling. While claiming to be scientific and objective, these tools, a centerpiece of Prop 25, will discriminate against Black and brown people.
WHY SHOULDN’T WE TRUST JUDGES TO TREAT PEOPLE FAIRLY?
Under the existing system, judges set bail knowing that people cannot pay and will remain in jail, even though they have not been convicted of a crime and are presumed innocent. Judges do so, in large part, because people in custody plead guilty quickly, thus moving court calendars more efficiently. Prop 25 gives judges even more power to keep people in jail before trial pressure them to plead guilty. While some judges do treat people fairly and will continue, the majority will use the new tools of “preventive detention” (incarceration with no bail or option for release) to keep people jailed and under pressure to plead guilty.
WILL PROP 25 INCREASE FUNDING AND POWER FOR LAW ENFORCEMENT?
Prop 25 explicitly funds probation departments, a branch of law enforcement, to supervise and monitor people, as though they are on probation, before they have been convicted of any crime. It gives probation the power to implement the risk assessment system and to assign conditions of release to all who are allowed out of jail. Probation departments will expand in personnel, funding, and power. Community-based pretrial services, that help people overcome obstacles to making court appearances, will disappear.
WILL PROP 25 SAVE TAX-PAYERS MONEY?
Prop 25 will be extremely costly to implement. Developing and utilizing the risk assessment system will cost more money, including additional funding for courts and probation departments. Further, it likely will not decrease pretrial incarceration and will probably increase the number of people jailed. Jailing people costs an average of $114 per day per person in California.
WILL PROP 25 MAKE THE CRIMINAL LEGAL SYSTEM FAIRER?
Courts use pretrial incarceration to pressure people to plead guilty, regardless of their actual guilt. People in jail are often faced with the decision—plead guilty and go home or assert innocence and wait in jail for the trial. Many people who may be innocent accept the life-changing consequences of a criminal conviction due to this choice. Prop 25 increases the ability of judges to keep people in jail with no option for release besides the guilty plea. Further, the discriminatory nature of the risk assessment tools that help decide who is jailed and who is freed will add to racial disparities in incarceration and conviction rates. Prop 25 will make our courts less fair.
WHO IS OPPOSING PROP 25?
A broad coalition of community organizations and civil rights groups oppose Prop 25 and support reforming the pretrial system without risk assessment, money bail or unlimited judicial discretion. The bail industry opposes Prop 25 and hopes to keep the old system in place, as do some judges closely tied to the bail industry and some in law enforcement.
ARE THERE ALTERNATIVES BESIDES MONEY BAIL AND PROP 25?
A group of community and civil rights organizations have developed a model for pretrial reform called “Preserving the Presumption of Innocence,” or PPI. PPI will limit who is eligible for pretrial incarceration to only those charged with the most serious crimes who are a demonstrable threat to harm another person. Courts would only order pretrial incarceration after a rigorous hearing with rights upheld. Pretrial services agencies, not connected to law enforcement, will not supervise people who are accused but not convicted of crimes, but will help them overcome obstacles to appearing at court. Statistical estimates and risk assessment tools will not be used at all. This system will reduce pretrial jailing, while making sure that the community is protected from those known to threaten harm. It will make sure that everyone is judged on their own individual merits and the people are not punished before they are even convicted of a crime.