Carrots and Sticks: California Weighs Two Criminal Justice Propositions

Californians will soon decide the fate of a pair of ballot initiatives that could bring major changes to the state’s criminal justice system. Proposition 20 would increase sentences for some theft-related crimes and roll back certain offenders’ eligibility for early release, while Proposition 25 would effectively replace cash bail in California with a new system. In light of this year’s protests against police violence and racial bias in law enforcement, these propositions may signal the extent to which Californians support reform — or favor reversing it.

Co-published by Patch

 
In 2011, the U.S. Supreme Court ruled that overcrowding in California’s prisons had resulted in “cruel and unusual punishment” that violated inmates’ Eighth Amendment rights, and ordered the state to reduce its incarcerated population. Proposition 47 and Proposition 57 were designed to help achieve this goal by reclassifying certain nonviolent felonies as misdemeanors and increasing access to parole, respectively. Both laws received widespread support from progressive groups working to address mass incarceration and racism in the criminal justice system.
 

“Prop. 20 would send more Black, Brown and low-income Californians to prison.”

— Marlene Sanchez, Ella Baker Center for Human Rights

 
However, a Prop. 20 victory would roll back some of those changes by introducing serial theft and organized retail theft as two new crime categories that could be punished as misdemeanors or felonies, depending on specific circumstances. According to California Assemblymember Jim Cooper, a Sacramento-area Democrat who supports Proposition 20, “Prop. 47 created a situation in which serial thieves can repeatedly steal without any real consequences. Since the passage of Prop. 47, the Department of Justice has recorded an increase of 25.9% in the crime of shoplifting and a retail loss of 2.9 billion dollars.”

Aside from police unions and advocacy groups, Prop. 20’s largest financial backers are supermarket chains. Albertsons Safeway, Ralphs and Costco each donated tens of thousands of dollars to pass the measure. Cooper’s campaign for state assembly also donated $50,000, while the Protecting California Cooper Ballot Measure Committee contributed an additional $125,000.

By passing Proposition 57 in 2016, voters decided that some felons could be considered for release before serving time for secondary crimes involved in their cases. Prop. 20 would make these rules more stringent. Cooper claims Prop. 57 does not specify exactly which crimes are considered violent enough to make offenders ineligible for early release and worries that a range of abhorrent acts are left in a gray area.

“Prop. 20 directly affects the safety and well-being of victims by adding crimes that should be considered violent crimes for purposes of early release under Prop. 57,” said Cooper in an email to Capital & Main. “Those convicted of these crimes get to take advantage of Prop. 57 because they aren’t ‘violent.’” Proposition 20 would also require DNA collection from individuals convicted of certain misdemeanors and crack down on those who violate community supervision requirements after being released.

“Prop. 20 is a step back,” said Joey Williams of PICO California, a grassroots organizing network, in an emailed statement. “Of course going backwards will impact people of color negatively,” he adds.

“Prop. 20 would send more Black, Brown and low-income Californians to prison, where we are already disproportionately represented,” claims Marlene Sanchez, deputy director of the Ella Baker Center for Human Rights. “Prop. 20 would also force cuts to programs our communities need that focus on rehabilitation, mental health, schools and homelessness.”

According to Sanchez, creating harsher punishments isn’t the answer to reducing crime. “Increasing penalties does not make us safer, increasing opportunities does,” she says. “Rehabilitation, building support systems and maintaining family relationships increases public safety and is less costly than locking people away.”

Both Williams and Sanchez feel that Californians are moving toward reform and away from policies like Prop. 20. “Voters in California have been very clear that we want restorative justice policies instead of mass incarceration with the passage of Prop. 47 in 2014 and Prop. 57 in 2016,” said Williams.

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Like Proposition 20, Proposition 25 revisits a recently passed law. Prop. 25 is a referendum on Senate Bill 10, which state lawmakers originally approved in 2018 to replace California’s cash bail system.

However, immediately after Gov. Jerry Brown signed SB 10 in August of 2018, opponents led by the American Bail Coalition filed to veto the bill with a referendum, gathering well over the 365,880 signatures needed to put the referendum to voters — and the new law on ice — until that decision. If voters approve Proposition 25, SB 10 can finally take effect.
 

The cash bail system “profits largely off of communities of color, it deepens poverty, it exacerbates existing economic inequalities.”

–John Bauters, Californians for Safety and Justice

 
“I’ve had grandmothers, grandfathers, seniors, aunts and uncles who have put up their homes to get someone out of jail,” Assemblymember Reggie Jones-Sawyer (D-South L.A.), a supporter of the measure, told Capital & Main. “And 10% of that goes back to bail bondsmen and that wealth gets sucked out of my community. Pretrial detention will now have to be justified and on the record.”

Today cash bail exists only in the United States and the Philippines. “[Cash bail is] very exploitative. It profits largely off of communities of color, it deepens poverty, it exacerbates existing economic inequalities, and it does nothing to improve the trajectory of people of color,” John Bauters of Californians for Safety and Justice, a nonprofit fighting mass incarceration, told Capital & Main. SB 10 “would significantly reduce the pretrial incarceration population,” added Bauters.

According to a report from the Public Policy Institute of California, an estimated “145,600 people — or 24.8% of people booked — would have their release status changed under [Prop. 25]. The vast majority [about 142,500] are misdemeanants who would be released earlier.”
 

Criticism of Prop. 25 from human rights groups has focused on the new law’s use of an algorithm in determining flight risk.

 
Unsurprisingly, the bail bond industry’s opposition to Prop. 25 is absolute. “This will eliminate the bail industry completely,” admits Topo Padilla, president of the Golden State Bail Agents Association.” Padilla says he is not against changes to make the industry more equitable. “I would like to see bail schedules be lowered. I would like to see bail schedules not used to be punitive, and I would like to see more quantifiable efforts to get people to bail themselves out of jail,” he says, adding, “Bail needs to be set at an amount that is a carrot and a stick with regard to the person appearing in court. We work with the defendant and their family to build a bond at a level at which we guarantee their appearance in court.”

The fight against Prop. 25 has made for some very strange political bedfellows. Criticism from human rights groups has focused on the new law’s use of an algorithm in determining flight risk, and posited that the new arrangement could actually make racial bias in the system even worse.

Although the American Civil Liberties Union’s three California chapters originally supported the changes behind Prop. 25, they reversed their positions in 2018, stating, “As much as we would welcome an end to the predatory lending practices of the for-profit bail industry, [Prop. 25] cannot promise a system with a substantial reduction in pretrial detention. Neither can [Prop. 25] provide sufficient due process nor adequately protect against racial biases and disparities that permeate our justice system.”

The ACLU’s Northern California chapter, which is officially neutral on Prop. 25, was sharply critical of SB-10 when it was passed, claiming that the law was “deeply flawed.” A statement from the organization read, “Although it would eliminate the predatory commercial bail industry, it would replace it with a risk assessment-based system that perpetuates racial disparities in pretrial detention, and it would grant judges and pretrial service agencies wide discretion to detain broad categories of people.”

Human Rights Watch announced its opposition to Prop. 25, citing concerns about the law’s high-tech risk assessment system. The organization belongs to the JusticeLA Coalition, a group that is challenging the proposition. “While JusticeLA vehemently opposes the exploitative system of money bail and the industries that profit from the detention of our loved ones,” said a coalition statement, “Prop. 25 only serves to empower the system we are working tirelessly to dismantle by expanding the bureaucracy of pretrial incarceration.”

Such arguments are flatly rejected by Prop. 25 supporters. “Every day,” explains John Bauters, “that someone is required to spend sitting in jail pretrial because they couldn’t afford bail makes them more likely to actually plead guilty to something they didn’t do, because at some point they’re going to lose their job or their house.”

According to Bauters, the fact that Prop. 25 is a referendum makes this vote especially consequential. “There is a court law that says if the legislature tries to take action on the same subject matter that voters have rejected in a referendum, they are legally precluded from doing so unless it is essentially different,” Bauters says, explaining that a Prop. 25 loss could “put a chilling effect on the movement for pretrial reform.”

While the battle over Prop. 20 plays out between tough-on-crime policy advocates and the criminal justice reform movement, Prop. 25 is more complex. In a fight that isn’t split along typical party lines, both Bauters and Jones-Sawyer acknowledge that concerns about the new system, particularly in its risk assessment protocol, are valid. “There will be amendments and some tweaks to the risk assessment system, but we need to start somewhere,” says Jones-Sawyer.

Co-published by Patch and USA Today affiliates in California

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