If voters pass the measure, which would in turn uphold 2018’s Senate Bill 10, California will become the first state to wholly abolish pretrial cash bail. Instead, judges must consider the results of a risk-assessment tool — software that uses algorithms to predict whether a person is likely to show up for court or get arrested again in the meantime — in determining whether to hold or release a person prior to their court dates.
“It’s complicated, especially if it comes as a way to end cash bail or comes as part of bail reform — it’s hard to stand in the way of it and say this is not a good idea,” said Electronic Privacy Information Center fellow Ben Winters, highlighting the difficulty of the decision voters face.
In need of reform
Proponents of Prop 25 say the measure would provide much-needed reform to the state’s criminal justice system.
Opponents — on both sides of the political aisle — agree that cash bail is a flawed system that disproportionately punishes low-income offenders, but they believe Proposition 25 is not a solution.
If Prop 25 succeeds, it will require that defendants arrested for nonviolent misdemeanors, which covers the majority of jail bookings, be released within 12 hours of being booked. Other defendants will be subject to a risk assessment that considers factors such as their age, criminal history, and whether they’ve missed court dates in the past, to sort people into low-, medium-, and high-risk categories. Those deemed high risk — including people arrested for violent felonies — will not be released before their arraignments.
The most widely used risk assessment tool is Arnold Ventures’ Public Safety Assessment, or PSA. Data collected by MediaJustice and Movement Alliance Project, which support pretrial release, estimates the PSA is used in at least five states and 59 counties in the US. San Francisco, which did away with cash bail in early 2020, is among them.
“I think the most helpful thing they’ve done is they’ve facilitated reform,” Stevenson said of the tools.
Asked how well the PSA specifically can forecast what will happen to defendants before their court dates, CNN Business was told that it has been shown to be predictive.
“It’s something that needs to be studied on an ongoing basis,” said Alison Shames, co-director of Advancing Pretrial Policy and Research, which is an initiative supported by Arnold Ventures that works with jurisdictions to roll out the PSA and researches pretrial assessments. Shames added that jurisdictions using the tool are told to collect data and determine how well it works for them.
How it could go wrong
The new system would likely lead to more people charged with low-level offenses being released before their trials, according to Jack Glaser, a professor at the University of California, Berkeley’s School of Public Policy.
“Without the bail option, more low-level offense, low-risk individuals will be released, and this will especially benefit those who otherwise didn’t have means to post bail,” he said. “On the flip side, more violent offenders with relatively high flight risk will be held in jail because the bail option is gone.”
A recent study from UC Berkeley’s California Policy Lab tried to quantify how much these tools could help if Prop 25 passes. Researchers pored over bookings in San Francisco and Sonoma Counties in 2017 and 2018, and found that if Prop 25 had been law the percentage of cases eligible for pretrial release would climb from 44% to 59% in San Francisco and from 63% to 66% in Sonoma County.
“Just using a risk-assessment tool doesn’t erase that reality from the data,” said Johanna Lacoe, co-author of the study and California Policy Lab research director. “It uses data where that’s a problem.”
Cherise Fanno Burdeen, executive partner at the Pretrial Justice Institute, explained the about-face came down to a belief that policing in the US has not been equitable for hundreds of years, which would make any algorithm using criminal history data itself racially inequitable.
“Data itself is not biased; it’s simply a reflection of biased policies,” she said.