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California Sticks To Cash Bail, Rejects Nation-Leading Move

In this Nov. 1, 2016, file photo, detainees wait in a cell for an appearance in Sacramento County Superior Court in Sacramento, Calif.
Rich Pedroncelli / AP
In this Nov. 1, 2016, file photo, detainees wait in a cell for an appearance in Sacramento County Superior Court in Sacramento, Calif.
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California voters stuck with the state’s traditional cash bail system in this year's balloting, rejecting a nation-leading move to rely instead on risk assessments to decide which suspects should remain jailed awaiting trial.

Voters in the most populous state overturned a 2018 law that stalled when the bail industry challenged it at the ballot box through Proposition 25. With more than 11 million votes counted, the measure failed Wednesday with 55% opposing and 45% favoring an end to the current bail system.

Supporters of the change had said the traditional bail system punishes the poor — often racial minorities — because they lack the money to buy their freedom or can least afford to pay a bail bondsman.


Opponents included some prominent civil rights groups who said the alternative’s risk assessment tools also are racially and socioeconomically biased.

A majority of states have significantly altered their pretrial release laws or policies in the last decade, but all retained cash bail for at least some kinds of criminal cases, said Amber Widgery, a criminal justice expert with the National Conference of State Legislatures who tracks state laws.

Voters’ approval of the measure would have made California “the only state with a complete prohibition on fiscal conditions of release,” she said.

“The arc of the moral universe is long, but it bends toward ending cash bail," state Sen. Bob Hertzberg, a Democrat from Los Angeles who wrote the 2018 law, said in a statement. "Millions of dollars from the predatory bail industry may buy them some time, but it can’t overpower our movement toward justice.”

He had argued that the current system “makes it a crime to be poor” and ending it would put California “on the path to a more fair and more safe justice system that treats everyone equally under the law.”


Reform groups including the Anti-Recidivism Coalition, Californians for Safety and Justice, and the Western Center on Law & Poverty all backed the shift.

But it wasn’t only the bail industry in opposition: Human Rights Watch, the ACLU of Southern California, the NAACP, and The Bail Project all said the current system is broken but the proposed fix might be even worse.

“The entire architecture of the law rests on the use of flawed statistical tools that codify systemic racism and could lead to higher rates of incarceration in some jurisdictions,” The Bail Project, which provides free bail assistance across the nation, said in a news release.

Changing to the new system would release more suspects more quickly, “but does not address existing racial inequity in release decisions,” particularly for Black people, researchers at the nonpartisan Public Policy Institute of California found.

The California Policy Lab at UC Berkeley similarly predicted that the change would increase release rates for Blacks more than for other groups, but Blacks would still be seven- to 10 percentage points less likely to be freed before arraignment than Latinos and whites, so racial and ethnic disparities in release rates would remain.

Under the new system, no one would pay bail and most misdemeanor suspects would remain free.

Those charged with felonies or misdemeanor domestic violence, sex offenses or driving while intoxicated would be evaluated for their perceived risk of committing another crime or not appearing in court. Most would eventually be released, unless they are accused of certain crimes like murder or arson, or if a judge finds there are no conditions like electronic monitoring that could assure their appearance at future hearings.

Hertzberg had said lawmakers added safeguards against racial biases in the statistical models that would help court officials decide who could be safely released.