In California, there is a showdown between opponents and supporters of Proposition 25, a referendum for 2018's Senate Bill 10 that would eliminate cash bail while replacing it with a risk assessment algorithm tool.
Since the death of George Floyd and Breonna Taylor, the national conversation about inequities in the criminal justice system has ramped up.
SB 10 was signed into law in 2018 but the bail industry challenged it and put it back on the 2020 ballot. The bill allows pretrial release from jail for some by using a computer-based tool that compiles socioeconomic and criminogenic history, among other things, to determine how likely it is a person will not appear for trial.
There are dozens of supporters on each side, ranging from the bail bonds industry, civil rights groups, former attorneys, judges and crime victim advocates.
Sam Lewis, the Anti-Recidivism Coalition’s executive director, has had a rocky path to advocacy. The Los Angeles-based non-profit advocates for criminal justice reform and supports the formerly incarcerated, as they transition back into the community.
“By the time I was 18 I was a high school dropout, had been shot twice, stabbed and I was sentenced to life in prison for a gang-related murder,” said Lewis.
He spent 24 years behind bars. Today, he is a reformed man who leads the Anti-Recidivism Coalition or ARC, an advocacy group that supports criminal justice reform and the formerly incarcerated. The group is also part of the Yes on Prop 25 coalition.
“I walked out of prison at the age of 42 with a bachelor’s degree and a desire to change my community and how the system works,” said Lewis.
Prop 25 supporters believe cash bail exploits the poor and desperate and disproportionally affects people of color.
“If we were to end cash bail, this will be one of the biggest changes to systemic racism,” said Lewis. “There’s a direct link to how people of color in our communities are arrested and held and kept. We can’t be released.”
He pointed NBC 7 towards a recent study out of Harvard that found that Black and Latinx people are overrepresented in Massachusetts’ criminal justice system and that they receive longer sentences than their white counterparts when convicted.
Former California Assemblyman Mike Gatto is an attorney representing the No On Prop 25 group.
“I just don’t see how they can draft an algorithm that would have more problems than the current system. I’d much rather have humans involved in the process,” said Gatto.
He believes, while the bail system is not perfect, it is working.
“Why would we take away something that has a very human element, whether someone can afford bail, whether someone is a good person. These are things that have been done for thousands of years in the criminal justice system,” said Gatto.
Lewis acknowledges critics’ concerns about the algorithm. He worries that if voters turn down this referendum, pre-trial incarceration reform will go by the wayside, signaling to lawmakers that the people prefer cash bail to remain.
“It’s not a perfect law we understand that an assessment tool can be biased. we’ve already passed laws to make sure we can evaluate assessment laws and be able to change it,” said Lewis.
Former defense attorney John Bauters now represents Californians for Safety and Justice, a statewide nonprofit criminal justice reform organization.
He explained to NBC 7, the original law, SB 10, had guidelines and guardrails baked into it that would require checks and balances and a council that reviews the process. SB 36, is another accompanying bill that requires the tool to be validated by the community it serves and monitored with consistent progress reports, among other things.
“There is a transparency piece that doesn’t exist anywhere else. The county actually has to open up the tool, show which factors it's using, show how it’s weighing those factors,” said Bauters.
While some places in California, like Santa Clara County, have already eliminated cash bail, not everyone agrees Prop 25’s suggested risk assessment algorithm is the right move.
Robin Steinberg runs The Bail Project, a non-profit that uses donations to pay bail across the country. She is against the cash bail system because she believes it creates a two-tiered justice system: one for the rich and one for the poor. But still doesn’t believe Prop 25’s assessment algorithm is the solution.
“The majority of people being held in our 3000 local jails in this country have not yet been convicted of a crime. They are there because they cannot pay their cash bail, Steinberg said. “Tools that purport to predict what somebody might do in the future, they codify racial disparities in the criminal legal system.”