Prop. 25 – Will Voters Decide to End Cash Bail in California?

Prop. 25 – Will Voters Decide to End Cash Bail in California?

With the Presidential debate and the first couple testing positive for COVID-19 dominating the headlines last week, you may have missed a very big story from Yolo County.

The Judicial Council, the policymaking body for California’s judicial system, earlier this year adopted a temporary zero cash bail policy in response to the coronavirus pandemic.  The statewide policy ended in June, but some counties like Yolo County have opted to keep the policy in place.

The Yolo County District Attorney’s office announced that since April 13 – when the policy was adopted – 310 individuals were arrested and released on zero bail, some multiple times.  Those who were released on zero bail committed over 304 new crimes collectively, including 123 felonies and 181 misdemeanors.  Charges include attempted murder, assault with a deadly weapon, felony domestic violence, and gang crimes.

Zero cash bail could become a permanent statewide policy depending upon the outcome of Proposition 25 on the November ballot.

Proposition 25 is a referendum sponsored by the bail bonds industry on Senate Bill 10, legislation enacted in 2018 that would eliminate bail in California.  The law has been on hold since the referendum qualified for the ballot.  If voters pass Prop. 25, the law takes effect and cash bail would be outlawed in the state.  If voters reject it, the law is repealed, and the status quo remains.

According to the nonpartisan Legislative Analyst’s Office (LAO) analysis of Prop. 25, passage of Prop. 25 would change the system to require “people place in county jail for most misdemeanors . . . to be automatically released within 12 hours of being placed in jail.”

Those who are placed in jail for felonies or misdemeanor ineligible for automatic release would “be assessed for their risk of committing a new crime or failing to appear in court if released.”  The accused who are medium-risk could be released either by “assessment staff” or a judge.  High-risk offenders or those charged with such felonies as murder or arson would remain in county jail until arraignment.  Assessment and release would have to occur no more than 36 hours from being placed in jail.

At arraignment, the LAO notes that “people in jail would generally be released on (their own recognizance)” and “would only be detained in certain circumstances” such as the likelihood the accused would commit a new crime or fail to appear.

Prop. 25 proponents write in the official ballot statement that, “under the current money bail system, if you can afford to pay bail, you go free until your trial.  If you can’t afford bail, you must stay in jail.  So, the rich can go free, even when accused of serious violent crimes, while the poor stay in jail even when innocent or accused of nonviolent offenses.”

But as PRI’s Kerry Jackson wrote in his 2019 book Living in Fear in California, “the history of the accused being released on bail shows that it was created to protect the poor, not exploit them.”  He notes that before the bail system was established, only those with money or property had the means to post a bond and secure their release while on trial.  Currently, the accused without financial means can work with a bail agent to post a bail bond backed by an insurance company for their release.

And, as Jackson wrote when SB 10 was being considered in the Legislature, “in addition to increasing the risk of flight and the danger to a community a non-bonded suspect would pose, the ‘reform’ would harm an industry.”  In this case, the bail industry.  He cites a study from New Jersey after a similar law was enacted there documenting that, “for every 10 employees lost in the industry, seven additional jobs would be lost.”

Opponents also note the experience Californians have had with zero cash bail during the COVID-19 crisis, with so many of the accused like those in Yolo County immediately going back on the streets and committing new crimes.

In one Yolo County case, an offender was arrested for felony vehicle theft and released on zero cash bail, and then went on to be arrested or cited nine separate times, including for lewd conduct in public and possession of a concealed dirk or dagger.  Another offender arrested for felony vehicle theft has been arrested, cited, or identified in twelve different offenses.

How voters decide Prop. 25 this November will ultimately determine whether Yolo County’s experience with zero cash bail becomes the new normal across the state or the exception to the rule. 

Tim Anaya is the Pacific Research Institute’s senior director of communications and the Sacramento office.

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Nothing contained in this blog is to be construed as necessarily reflecting the views of the Pacific Research Institute or as an attempt to thwart or aid the passage of any legislation.