California’s cash bail system favors the rich. Would replacing it help people of color?
At 34, Isaac Miller’s future looked bleak.
He was facing detention, a seven-year prison sentence, and a $50,000 bail. Without his family’s savings, he said he didn’t know how he would have paid his way out, which meant he could have lost his job and the ability to find a good lawyer.
“If I didn’t get bailed out, there would be no way I could defend myself,” Miller, now 42, said. “It was really hard on my family.”
Californians in November will head to the ballot box to vote on Prop 25, a measure that, if passed, would make the state the first to eliminate cash bail permanently. The new system would give judges greater discretion on setting the terms for pretrial release based on a risk assessment model.
Miller, who is mixed-race, had his felony assault charges dismissed after the prosecutor threw out the case. But the emotional toll weighed heavily on him for years, leading him to sue the police department and being awarded $500,000 in damages. He said being Black could have influenced the Hanford police officer to pursue a case, despite multiple witnesses claiming the accuser had hurt himself while intoxicated.
“What’s another reason behind it?” he said, questioning the officer’s intent. “It was hard for me to swallow. As a person of color, you have to fight for your innocence, but if you don’t have the means to do that, you’re not going to win.”
The unrest spurred by the killing of George Floyd has upended the country, forcing the U.S. to confront its longstanding history of racism in policing. With renewed attention on law enforcement and mass demonstrations against racial injustice enveloping the nation, protesters are calling for reform and demanding substantive change within a criminal justice system they say disproportionately harms and imprisons people of color.
Miller often thinks about how his future could have been different if he didn’t post bail, he said, adding that if convicted, he could have missed out on the first seven years of his daughter’s life.
“How many people that can’t afford to do that are locked away or put away on false charges?” he said. “It’s like a business to keep people locked up.”
The measure was first introduced in the California Legislature as SB10 and signed into law by Gov. Jerry Brown in 2018, but never went into effect after the bail bond industry launched an aggressive campaign to put it on the ballot. Now, the multi-billion dollar industry hopes voters overturn the law and keep cash bail intact, while reformers seek to put the industry out of business for good.
Reasons to vote ‘yes’ on California’s Prop. 25
Supporters of the measure say the cash bail system disproportionately harms people of color and low-income communities, where a poor suspect can sit in a jail cell awaiting trial for a crime they haven’t been convicted of for an unknown period of time, while affluent suspects can immediately go home.
The goal is to create a system where freedom isn’t based on an individual’s ability to pay or put money into the pockets of “predatory lenders,” said state Sen. Robert Hertzberg, who drafted the measure.
“Over the last 30 to 40 years, an entire predatory lending industry has evolved around this notion of bail,” he said. “Poor people are getting stuck in jail and having their lives ruined.”
Across the nation, Black and Latino individuals are between 10 to 25% more likely than white individuals to be detained pretrial or have to pay cash bail, according to a report from the criminal justice think-tank the Prison Policy Initiative. Black and Latinos, on average, also receive bail amounts set twice as high as bail for white individuals, a troubling statistic that some advocates say drives poor people into “insurmountable debt.”
“It’s almost like a ransom,” said Lenore Anderson, founder and president for the nonprofit Californians for Safety and Justice. ”It’s so extreme that in many situations, even if they’re found innocent, even if the charges are dropped, or the case is dismissed, people end up in insurmountable debt that has to be paid to these bail bond companies.”
According to a report from the nonpartisan Public Policy Institute of California, nearly two-thirds of California inmates in 2014 sitting in a county jail were there because they could not afford bail. With the average California bail set at $50,000, an individual who contracts with a bail bond company would need to pay a nonrefundable 10% of their bail upfront, or $5,000, before they could get out. That means poor people would still need to fork over thousands of dollars even to afford a contract with a bail bondsman. The result is an industry that makes exorbitant profits each year, Anderson said.
In 2018, the bail industry issued about $6 billion in bail bonds and collected about $560 million in bail bond fees. Insurance companies are required to pay a 2.4% state insurance tax on these fees, which totaled to nearly $13 million that year, according to a report from the Legislative Analyst’s Office.
“Now the bail industry and the insurance companies behind them that make so much money, well they’re angry because we’re putting them out of business,” Hertzberg said. “Well, you know what? The slave traders I’m sure were angry when we had the Emancipation Proclamation.”
Reasons to vote ‘no’ on California’s Prop. 25
But many opponents of the bill say the system proposed to replace cash bail could make the racial inequity problem worse - not better - for people of color.
If passed, Prop. 25 would replace cash bail with a system that puts all of the power in the hands of judges who would make individual decisions based on a risk-assessment analysis.
“I see how easy it is for young men who feel like they have no opportunities to get down into a lifestyle that makes your chances of being arrested go up or where society seems to target you no matter what you do,” said former Assemblyman Mike Gatto, who is consulting for the bail industry’s campaign against Prop 25. “And this is something where I think frankly people are taking out their frustrations on bail because it involves money. It’s something that people can attack.”
The bail bonds industry has had an unlikely mix of allies, including many public defenders and civil rights and criminal justice reform organizations, including the ACLU and Human Rights Watch, who worry the risk assessment model will exacerbate existing racial inequities.
Though the ACLU has expressed opposition to SB10, the civil rights organization in a statement to The Bee on Thursday said it was neutral on Prop 25.
Gatto said bail isn’t the problem because it gives individuals a second option. Instead, he would like to see elected leaders tackle “bigger issues,” such as racial bias in policing and desegregating neighborhoods. He hopes addressing systemic racism, and quality-of-life issues will help reduce crime and give Black and brown people more upward economic mobility, rather than granting judges too much power.
“Tell me how you write an algorithm that is not biased,” he added. “I’d like to see more energy spent on addressing the bigger issues which we all know exist and trying to make sure that there are more opportunities, so people don’t feel so desperate and also where we really question why someone is arrested in the first place.”
According to the Legislative Analyst’s Office, judges use the tools to assign points that are based on particular traits. A judge determines a person’s risk level by the total number of points received and then decides if the person should be released. The tools were developed through research that showed that people who had certain traits, such as being younger, were more likely to commit a new crime or fail to appear in court, deeming them high risk.
But critics of the tools say they uphold racial bias in the criminal justice system by allowing judges to criminalize traits that are overwhelmingly represented in communities of color.
“What we know about our criminal justice system is that it’s not just about the courts, but it’s also about how we police our community,” said Michael Deegan-McCree, a spokesperson for The Bail Project. “The majority of communities of color in impoverished areas are overly surveillanced by law enforcement.”
When communities of color are patrolled more frequently than a white suburb, Deegan-McCree said, people committing crimes in those neighborhoods are policed more heavily than in white neighborhoods and end up in jail more often.
“We take huge issue with these risk assessment tools because they still give the upper hand to those who live in affluent neighborhoods, those who are white, and those who don’t come from communities of color,” he added.
Chris Loethen, a former public defender and criminal defense attorney for more than 15 years, worries judges will keep people in jails longer if they have the discretion to do so.
“Cash bail is the only way that levels the field while a case is pending,” Loethen said. “It’s not that all these dangerous people are being let out because they’re posting bail. The real problem is all these low-level people being in custody when they shouldn’t be because the bail amounts are so high and the judges don’t want to let people out.”
Loethen said judges might keep defendants detained as a way to prevent that individual from committing another crime when there is no way of knowing or because the judges “want to operate in their own self-interest.”
“Maybe once, they let somebody out, and then that guy went and killed his wife the next day,” he said. “Or maybe it’s because the judges want to operate in their own self-interest and what’s the best way to keep their calendars light and moving forward? Well, by keeping people in custody.”
Can bail reform work in California’s justice system?
Kevin Little, a defense attorney based in Fresno, told The Bee there is no simple bail reform solution. Though he hopes the measure will pass, he said the new system needs to be “monitored very closely.” He’s worried that cash bail could be replaced with a new predatory industry.
“I’m concerned that this is going to spawn a whole other industry of monitoring agencies and consultancies that are going to add expense and time that the law is intending to minimize,” he said.
He said setting onerous conditions for pretrial release could further restrict individuals who have yet to be convicted of a crime and potentially make it more difficult for them to comply with those conditions.
But Anderson said, under SB10, judges are prohibited from assessing fines and fees for people who are released pretrial.
“It is explicitly in the bill that you cannot charge people for the pretrial release services requirements, and it was written that way because of these concerns,” she said.
In response to racial bias concerns, Anderson added, SB36 was drafted. If Prop 25 passes, the bill would require annual reporting on race data related to decision making on pretrial release. The law would be the first requirement of publicly reported data in the country, she said.
“The criminal justice system is rife with racial bias at every step,” Anderson added. “But it’s fundamental that we get the predatory bail industry out of the picture so that we can start to build a system that every Californian wants.”
This story was originally published September 16, 2020 at 5:00 AM.