PD Editorial: Yes on Prop 25, end California’s cash bail system

The presumption of innocence is a cornerstone of the American justice system. Yet many people get stuck in jail for months without being convicted of anything.

In one especially egregious case, a 64-year-old San Francisco man accused of stealing a $5 bottle of cologne was held for 11 months, first on $600,000 bail, then $350,000. He was eventually released to a drug treatment program, but only after a state appellate court intervened.

As the justices put it, the man was “imprisoned solely due to poverty.”

Proposition 25 on the Nov. 3 ballot offers California voters an alternative.

If it’s approved, cash bail would be replaced by evaluations to determine whether people who have been arrested on felony charges can be expected to show up for court hearings and assess the risk that someone would commit crimes if they were granted pretrial release.

People charged with the most serious and violent offenses wouldn’t be eligible for pretrial release, and courts could order people who are eligible to report to probation officials or submit to electronic monitoring as a condition of release.

The risk-based release system was outlined in SB 10, legislation passed in 2018 and signed into law by then-Gov. Jerry Brown. But the law was put on hold after a referendum sponsored by the bail industry qualified for the ballot. So the decision falls to the voters.

A vote in favor enacts the law, a vote against overturns it.

There is a constitutional right to pretrial release for most offenses. Traditionally, that right has been exercised through the bail system. A criminal defendant can post cash or property. In most cases, however, defendants pay a nonrefundable fee — typically 10% of their bail — to a bail bondsman, who is liable for the full amount if the person doesn’t show up in court.

But the system is deeply inequitable. A high bail may not pose any an obstacle for an affluent person charged with a serious felony, but even a low bail is often too much for a poor person charged with a relatively minor offense.

Criminal proceedings are notoriously slow, and people jailed for months can lose their jobs and homes. The financial burden may lead them to accept an unfavorable plea bargain, and the accompanying criminal record, because they can’t afford to wait for a chance to exonerate themselves during a trial.

This isn’t an academic scenario in a state where, according to the new census figures, about 1 in 6 people live in poverty or near-poverty.

Moreover, academic studies have found that bail Black and Latino defendants are more likely than whites to be detained prior to trial.

Opposition to Proposition 25 is led by the bail industry, which has an obvious economic interest in maintaining the status quo, with support from some police and prison guard associations that reflexively oppose almost every criminal justice reform.

Critics argue that the risk-assessment metrics will disadvantage minority defendants as the bail system already does. That’s hardly an argument for sticking with the present system, but judges aren’t bound to follow the recommendation of the risk assessment. Moreover, lawmakers should assess the results of the new system and make any necessary changes.

Proposition 25 would bring some equity to the state’s bail system while ensuring the most dangerous offenders aren’t freed. The Press Democrat recommends a yes vote.

You can send letters to the editor to letters@pressdemocrat.com.