Few deny the United States has a mass incarceration problem. Not many, however, recognize cash bail is a leading contributor to this national issue.
The connection is clear in California where over 60 percent of the state’s jailed population has not been convicted. In San Diego that figure jumps to 70 percent.
Legally innocent, these individuals sit behind bars awaiting the resolution of their cases. While some are there because they have been presumed dangerous to the community or liable to skip court, the vast majority simply cannot afford to pay the bail amount necessary for their pretrial release.
California’s current cash bail system of locking up the poor must be transformed, and the failure of Proposition 25 indicates a need for alternative solutions.
Cash bail is the practice of requiring a defendant to pay the court some amount of money as a guarantee they will attend all future hearings. After trial, this amount is paid back to the defendant. However, if the defendant cannot produce the requisite funds on their own or through a commercial bail bondsman (who will charge a 10% premium), the defendant will be held in jail until their case is concluded.
Consequently, for the poor, cash bail functions as a form of pretrial punishment. In California, defendants who cannot make bail may sit in jail for weeks or months before their cases are even brought to trial. Such imprisonment can lead to job, custody, and housing loss, regularly compelling the innocent to accept unfavorable plea bargains in order to escape confinement.
In November 2020, Proposition 25 gave Californians the chance to decide whether or not to keep the state’s cash bail system. Proposition 25 was a popular referendum on Senate Bill 10, passed by the California legislature in 2018 in an attempt to replace cash bail with a risk assessment scheme designed to measure the risk that a defendant might commit a violent crime or skip court.
Under this first-of-its-kind law, minor offenders would quickly be released while computer algorithms would sort remaining detainees into low, medium and high-risk categories based on their personal histories. Following this categorization, local rules and judges would decide if a defendant could be released pending trial.
However, a campaign led by the American Bail Coalition stalled the law from taking effect and landed Proposition 25 on the November 2020 ballot. Ultimately, 56% of the electorate voted ‘no’ on the proposition, thereby rejecting Senate Bill 10 and preserving cash bail in California.
Opposition to Proposition 25 came not only from the for-profit bail industry but also various progressive organizations fundamentally opposed to cash bail, including the ACLU, the NAACP, and Human Rights Watch. These groups worried Senate Bill 10 would give judges too much unchecked power to detain people based on little evidence, and further, that risk assessment tools’ reliance on the aggregation of racially biased data, including socioeconomic status, criminal justice history, and demographic information, would reinforce the unequal detention of individuals of color.
Criticized by both the left and right, Proposition 25 collapsed, but cash bail in California may yet be reformed. In March, the California Supreme Court recently decided that the state’s cash bail system violates due process and equal protection rights of defendants because it regularly detains them before trial if they cannot afford bail.
With this landmark ruling, California should soon see judges set proportionally lower bail amounts leading to fewer pretrial detainees. Additionally, San Francisco and Los Angeles recently traded their cash bail systems for prosecutorial policies that largely presume release except where a defendant is accused of violent crime.
However, given individuals of color are often more severely policed, arrested, and charged, these reforms may only recreate rather than remedy the racial disparities promoted by today’s cash bail system. Therefore, while the number of pretrial detainees may be reduced, these measures cannot be regarded as perfect solutions. We must continue to reimagine cash bail to ensure all are provided an equal opportunity at pretrial release.
Evan Harris pursuing Juris Doctor and Master’s in Peace and Justice Studies degrees at the University of San Diego.