Olivia Allen-Price [00:00:41] But is the alternative proposal more equitable? On this final day of Bay Curious Prop Fest, we take a look at Proposition 25, replacing cash bail.
Olivia Allen-Price [00:00:56] Political correspondent Marisa Lagos is covering Prop 25 for KQED and she's also the co-host of the podcast Political Breakdown. Welcome, Marisa.
Marisa Lagos [00:01:05] Hey, Olivia.
Olivia Allen-Price [00:01:05] First, can you take us through how the cash bail bond system works in California now?
Marisa Lagos [00:01:10] Yes. To do this, I am going to make you an accused felon, Olivia Allen-Price.
Olivia Allen-Price [00:01:14] All right.
Marisa Lagos [00:01:15] So, you're walking down the street in San Mateo County. You get arrested on suspicion of possession for sale of a controlled substance. This wouldn't be like you have a little weed in your bag, this would be like maybe you've got a bunch of heroin or they think you do. The bail for that is going to be set at $25,000 just by the schedule that exists in San Mateo County. So, the officers would arrest you and either you would have to hand over 25 grand to the county to secure a release or possibly depending on how big of a drug dealer they think you are, they might make you go before a judge who could either lower or increase that $25,000.
Marisa Lagos [00:01:57] So, you don't have 25 grand lying around. I mean, really, who does? Right. You would then decide whether you're going to stay in jail until you can get a trial set or you might call a bail bonds agency. And what they would do is essentially guarantee the county that they would pay that 25 grand if you skipped out on your case. So, if you didn't come back for your trial dates. In exchange for that, you would have to pay them 10% of that amount. So, $2,500. If you have the 25 grand to post your own bail, you would get that money back regardless of whether you got convicted of the crime or the charges got dropped or you were found to be innocent. You would just get that money – the money is just there to make sure you show up at trial. However, if you didn't have that kind of cash laying around and you had to go through a bail bond agent, that $2,500 that you gave them to secure your bond, you would forfeit. You would never get that money back.
Olivia Allen-Price [00:02:55] The whole cash bail system has sort of been under fire for a long time for being inequitable. Give us an example of how that inequity plays out.
Marisa Lagos [00:03:04] Look, people who have been accused of very violent crimes up to murder can sometimes post bail if they have the means. But a lot of people end up languishing behind bars for really minor crimes because they just don't have the money. Their families don't have the money. And disproportionately study after study shows these tend to be black and brown people.
Marisa Lagos [00:03:24] If you can't pay that bail amount, you can't go to work. You might lose custody of your kid. By losing your work you might not be able to pay your rent. So what critics of the system say is that it kind of perpetuates the cycle of poverty and potentially leads more people into crime, or can lead people to plead guilty to things that they did not do, or that they might have a good chance of fighting, because they essentially just want to get out of jail and get back to their lives.
Olivia Allen-Price [00:03:58] And we should add that this isn't an insignificant number of people, right? 2/3 of people in California jails are people who haven't gone to trial yet and have only been accused of a crime. So, Marisa. How would Prop 25 change things?
Marisa Lagos [00:04:13] If Prop 25 passes, it will make California the first state in the nation to completely eliminate bail and it creates a whole new system.
Olivia Allen-Price [00:04:23] Walk us through how this made it onto our ballot.
Marisa Lagos [00:04:25] So, let's go back in time. Two years ago, the legislature passes Senate Bill 10 [SB 10] and it's signed by Governor Jerry Brown. Virtually immediately, the bail bond industry went to the secretary of state and filed what's called a referendum. A referendum is a special type of ballot measure, which sole purpose is to overturn a law that the legislature has enacted.
Olivia Allen-Price [00:04:45] And what did SB 10 say?
Marisa Lagos [00:04:47] SB 10 essentially said that commercial bail would be illegal in California. You could no longer pay a bail bondsman or woman for your freedom. Instead, most people accused of very low level misdemeanors would just automatically get released. No questions asked, here's your court date. People accused of very violent felonies would almost never get out pretrial. People kind of in the middle would have an opportunity for the courts to do what's called a risk assessment. So, essentially an algorithm where they put in a bunch of information where you live, who you are, what your criminal history is. Are you employed? And it spits out its best guess based on a lot of data as to whether you're a risk to public safety and whether you're likely to come back to court. And, perhaps most importantly, if there are maybe conditions we could put on your release that would ensure that you would come back and not pose a threat. So, that might be that you have to check in with a probation officer. It might be that you have to be drug tested. But essentially alternatives to this idea that money is the best way to ensure that somebody comes back. And within that system, judges would have a lot of discretion to decide both whether someone should be released at all and if they are, what conditions they need to abide by.
Olivia Allen-Price [00:06:05] What do we know about the risk assessment system that would be put in place?
Marisa Lagos [00:06:09] These are built by people and there's a lot of existing inequities within our system. And so I think the concerns that have been raised about them is that if you're relying on an algorithm that already assumes that maybe, I mean, this is a really like, like blunt example, but that assumes like if you're a Black man, you're more likely to be a criminal because historically we have over-arrested Black men, then that's not fair either. And so there are some questions from a civil liberties perspective about the way these algorithms are being developed and if they are perpetuating the existing disparities within our system. And then on top of that, you know, judges are humans and they have their own subjective approaches and beliefs. They're all there to try to be very fair. But we, again, know from our existing system that a white person and a Black person are not always treated the same, even if they're accused of the exact same crime.
Olivia Allen-Price [00:07:12] I think that's a perfect segue way to get us into talking a little bit more about the arguments for and against Prop 25. So, let's start with who is supporting this prop and kind of what they're arguing.
Marisa Lagos [00:07:22] Probably what you see is really the Democratic establishment pushing this in California, and they're supported by – certainly not everyone in law enforcement, there are a lot of law enforcement groups on the other side – but groups who have had experience with this, like the probation chiefs, are also in support.
Olivia Allen-Price [00:07:38] And what are their arguments, broadly?
Marisa Lagos [00:07:40] So, they're basically saying that public safety should guide these decisions – not money, not race, not sort of the neighborhood you came from. They're saying that this is going to make the process fairer for all people and that it will actually end up saving taxpayers money, because after you get past the kind of initial cost of building up this pretrial system, you may end up with far less people awaiting trial in jail. And those are people that we're all paying to feed and house and potentially to support in other ways. I think that they are really trying to drill down on the issue that the bail industry are the ones that spent the money to get this on the ballot and that are really funding this campaign, that this is a commercial entity that isn't interested in public safety or anything else, but rather in protecting their own bottom line.
Olivia Allen-Price [00:08:33] There are some interesting groups standing in opposition to this one. Who are they and what are their arguments?
Marisa Lagos [00:08:39] The biggest sort of coalition against this are the bail bonds, businesses that are going to lose their business if it passes. They're the ones that paid to get it on the ballot. They are largely the ones that have funded no on Prop 25. They do have support, though, from the California Republican Party, from a handful of elected officials, most of them Republican, and certainly from some law enforcement groups who are worried about this. They're trying to make this a sort of question, not about whether money bail is fair, but whether it denies a constitutional right if you take away the option of money bail. That it could actually create additional biases against minorities and the poor by giving these judges so much power. And they are also basically making the argument that it puts public safety at risk.
Marisa Lagos [00:09:28] I will say, though, that there are some progressive groups, especially in L.A., who have raised concerns about this. The ACLU is not advocating for a no vote, but did not support Senate Bill 10 when it passed, because they were concerned about this question of racial disparity and judicial discretion. Some folks on the left really feel like this could potentially lead to more people being locked up behind bars before their trials because it does give judges, you know, so much power. And I think that judges have their own biases and these risk assessment tools were built by data that included a lot of disparities, especially racially.
Olivia Allen-Price [00:10:09] How well-funded are these campaigns for and against 25?
Marisa Lagos [00:10:13] So, on the no side, and to reiterate, this is the side that wants to overturn Senate Bill 10 – so, that would keep cash bail. It is almost entirely being funded by insurance companies and individual bail bondsmen and women who are paying to try to overturn this law. On the other side, I would say it is kind of a who's who of Democratic activists and groups, including some of the big public employee unions like SEIU [Service Employees International Union], some of the big criminal justice groups, and individual donations from activists who have been pushing these reforms. And we've also seen some money come in from the Democratic Party itself.
Olivia Allen-Price [00:10:54] Marisa Largos is KQED politics correspondent and the co-host of the Political Breakdown podcast. Thanks, Marisa.
Marisa Lagos [00:11:01] Thank you.
Olivia Allen-Price [00:11:03] To recap, a yes vote on Prop 25 says you want to replace cash bail with risk assessments as outlined in Senate Bill 10. A vote no means you'd rather keep cash bail practices in place and repeal Senate Bill 10.
Olivia Allen-Price [00:11:20] That's a wrap on Bay Curious Prop Fest. It has been a journey going through these 12 statewide propositions together over the past few weeks. Thank you all so much for riding along with us. If Prop Fest helped you out, please let us know by leaving a rating and review wherever you listen, or send us an email at Bay Curious at KQED dot org [firstname.lastname@example.org]. We love to hear from you. We'll get back to our regular programming with a new episode next Thursday. If you're a new listener who is just tuning in for Prop Fest, be sure to subscribe to Bay Curious so you don't miss a thing.
Olivia Allen-Price [00:11:58] Prop Fest has been a labor of love from our small team here at KQED. None of it would've been possible without the hard work of producer Katrina Schwartz, who was in the trenches with me making the series every day. Katrina, I am so, so grateful for you. Let's go take a day off. Our sound engineers, Rob Speight and Katie McMurran make our episodes sing, despite all the wonky-recorded-at-home tape that we throw their way. Thanks also to Jessica Placzek, Kyana Moghadam, Erika Aguilar, Bianca Taylor and Paul Lancour for giving us feedback on every episode. And to the entire KQED staff that helped make what we do possible, thank you.
Olivia Allen-Price [00:12:40] Bay Curious is made in San Francisco at member supported KQED. I'm Olivia Allen-Price. Now please go vote with confidence.