The bail industry defeated Prop. 25, California must continue criminal justice reforms

BY ROBERT HERTZBERG, NANCY SKINNER, AND ROB BONTA

January 27, 2021

Our criminal justice system is supposed to be based on a fundamental premise: “innocent until proven guilty.” In reality, this basic right is not afforded to millions of low-income Californians, particularly those in communities of color.

At the heart of this injustice is our money bail system. It results in untold numbers of low-income Californians having to languish in jail, sometimes for years, while they await their day in court — simply because they can’t afford to post bail or bond.

It’s blatantly unfair. It effectively means wealthy people who can afford bail are presumed innocent and are free to go home to their families while low-income defendants, particularly Black and brown people, must stay locked up and are effectively guilty until proven innocent.

To correct this wrong, we co-authored SB 10, the California Money Bail Reform Act, in 2018. Gov. Jerry Brown signed it into law.

However, the bail bond industry quickly realized SB 10 would severely impact their huge profits, so they spent millions to put the issue on last November’s ballot. They hired highly paid political consultants to figure out how to get voters to agree with them and uphold money bail.

Those consultants took one look, and like the proponents of SB 10, literally found money bail indefensible. There was no way to justify allowing people accused, but not convicted of minor, nonviolent crimes to be held in jail while awaiting trial. And these high-priced consultants definitely couldn’t honestly defend a system that has forced some innocent people to plead guilty just to avoid losing a job or their children.

So they deployed the usual tactics of big-money politics: distortion and deception. Their campaign appropriated the language of reformers, contending disingenuously that SB 10 wasn’t progressive enough, that it wasn’t fair. Unfortunately, the lies worked. The bail industry overturned SB 10 by defeating Proposition 25.

They won the battle, but we will win the war.

More than 7 million Californians saw through the industry’s falsehoods and voted to eliminate money bail. Many people know that the bail industry doesn’t keep us safe, doesn’t ensure court appearances and doesn’t care about the inflicted financial harm.

So, reform efforts continue. Counties like Los Angeles and San Francisco are leading the way by not seeking bail in nonviolent cases. Santa Clara and Santa Barbara counties have pioneered effective tools that do not involve jailing someone before trial just because they can’t afford to post bail or pay a bondsman’s fee. These counties have proven that simply sending people text message reminders is enough to ensure that they show up in court.

When our courts temporarily halted money bail during the COVID-19 pandemic, it didn’t impact public safety as the bail industry predicted.

To help ensure that any risk assessment tool used to replace money bail is fair, unbiased and effective, the Legislature enacted a law last session to improve transparency and accuracy. But more must be done.

We need to tackle the unjust profiteering of money bail companies and ensure that money paid for bail gets back into the pocket of those whose cases are dismissed or who are found not guilty. We also need to ensure that any money bail contract contains enforceable consumer protections. And we need to reaffirm our commitment to the presumption of innocence by establishing a default of no bail and no pre-trial detention for misdemeanors and low-level felonies.

Until the day when we get rid of money bail, we need to do all we can to minimize the harm it inflicts. Make no mistake: That day is coming. We will keep working until it’s here because nothing less than justice is at stake.

**This story was featured in the Sacramento Bee (Jan. 2021).