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Women walk along a corridor at the Los Angeles County women's jail. © 2013 Lucy Nicholson/Reuters

(Los Angeles, CA) – Californians voting in November 2020 should reject the recently named Proposition 25, a ballot measure that, if passed, will replace the injustice of money bail with an even more discriminatory pretrial system, Human Rights Watch said today. Voting “no” would repeal a 2018 law that was misleadingly promoted as pretrial reform but which in reality exchanges money bail for a system that uses racially biased risk assessment tools, gives judges nearly unlimited discretion to incarcerate, and increases funding and power for law enforcement. Keeping the 2018 law will likely result in more pretrial incarceration and will make achieving meaningful reform impossible.

The protests against racial injustice, including mass incarceration, following the police killing of George Floyd, demonstrate the need for bold structural changes to the criminal legal system, and not simply exchanging one bad process for another. Californians should vote against Proposition 25 and focus efforts on replacing the existing money bail system with reforms that reduce pretrial incarceration and guarantee meaningful due process for all accused people.

“With the old system, judges set high bail knowing it will keep people locked up; with Proposition 25 they can just order someone locked up without even setting an amount,” said John Raphling, senior researcher on the criminal legal system for Human Rights Watch. “The new system just increases judges’ ability to incarcerate people.”

Proposition 25 is a voter referendum on SB10, which was passed into law in 2018, after its backers sold it as an effort to address the harms of money bail. In fact, SB10 was a backroom deal between legislators, judges, and law enforcement unions that would give more power to judges and more money for probation departments, without ensuring any reduction in the number of people incarcerated before their cases are even decided. The law, which a few advocacy organizations backed, would end the use of money bail, but would allow judges to order “preventive detention” – pretrial incarceration with no avenue for release – with no meaningful due process constraints and based on criteria so subjective that judges can choose incarceration in nearly every felony case.

Human Rights Watch has documented how pretrial incarceration forces accused people to face the choice of pleading guilty to get free or contesting the charges and staying in jail. Many accept criminal convictions regardless of actual guilt. Judges and prosecutors have relied on this pressure to process cases more efficiently, making it a major driver of mass incarceration and of flawed convictions.

In California counties studied by Human Rights Watch, 70 to 90 percent of people accused of misdemeanors and low-level felonies plead guilty to be released before their first possible trial date. This use of pretrial incarceration to coerce rapid guilty pleas causes vast harm to people and damages the credibility of the courts. With the heightened power of “preventive detention” granted by SB10, judges can continue to use pretrial incarceration as a tool to move court calendars by pressuring guilty pleas.

SB10 requires all California courts to use racially biased algorithm-based risk assessment tools to decide who is even eligible for release from custody. These computerized tools take discrete facts about a person, without providing individualized context to understand them, and use those facts to create a profile. They then compare the individual to others with a similar profile and estimate the likelihood that individual will miss a court date or be rearrested. Because the data that feeds the profile is based on a racially biased criminal legal system, the estimates inescapably recycle and reinforce that same racial bias, but with the false veneer of scientific objectivity.

Risk assessment tools produce risk scores for each individual that inform whether or not that person is to be released from custody. However, the scoring system is completely adjustable – whoever controls the tool can change the threshold scores for release to justify locking up as many people as they want. The tools do not promote fairness; they promote a discriminatory and dehumanizing system. Leading civil rights organizations across the United States have joined in rejecting the use of these tools.

SB10 mandates that county probation departments administer the risk assessment tools and conduct the supervision and monitoring of anyone released pretrial. This mandate means a funding windfall for these law enforcement agencies and an expansion of their powers, at a time when people across the state and country are calling for less law enforcement and more community-based services.

Human Rights Watch has long exposed the harms of money bail and pretrial detention beginning with the 2011 report on bail in New York City, “The Price of Freedom.” In 2017, Human Rights Watch reported specifically on California’s pretrial system, finding it harmful to poor people and disproportionately so to Black and brown people in the state. While endorsing repeal of SB10 through a “no” vote on Proposition 25, Human Rights Watch also opposes the bail bond industry’s efforts to continue the harmful old system.

Rather than replacing money bail with risk assessment tools and nearly unlimited judicial discretion to incarcerate, California legislators should adopt pretrial reform in line with recommendations in the 2017 report, “Not in It for Justice: How California’s Pretrial Detention and Bail System Unfairly Punishes Poor People,” Human Rights Watch said.

Lawmakers should set strict limits on who is eligible to be jailed before they are convicted, mandating release for lower level felonies and most misdemeanors. They should set strong due process requirements to ensure that everyone has a fair hearing about their individual circumstances. They should oppose any use of risk assessment tools. These recommendations appear in a reform proposal, “Preserving the Presumption of Innocence,” that has been endorsed by a wide range of community and advocacy organizations in California and across the country.

“Californians have rightly fought to end the overuse of pretrial incarceration, but SB10 hijacked that call for change and created a new, even more unfair system,” Raphling said. “Rejecting SB10 opens the door to rethinking pretrial reform and creating a truly just system.”

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