Understanding Proposition 36

Introduction

Over many years, California lawmakers and voters adopted harsh, one-size-fits-all sentencing laws that prioritized punishment over rehabilitation, led to severe overcrowding in state prisons, and disproportionately impacted Californians of color.

California began reconsidering its “tough on crime” approach in the late 2000s. Multiple reforms were adopted as prison overcrowding reached crisis proportions and the state faced lawsuits filed on behalf of incarcerated adults. These reforms worked as intended: The number of adults serving sentences at the state level fell from a peak of 173,600 in 2007 to around 90,000 today. Meanwhile, violent and property crime rates in California remain well below historical peaks. 

A key justice system reform was Proposition 47, which passed with nearly 60% support in 2014. Prop. 47 reduced penalties for six nonviolent drug and property crimes from felonies to misdemeanors. As a result, state prison generally is no longer a sentencing option for these crimes. Instead, people convicted of a Prop. 47 offense serve their sentence in county jail and/or receive probation.

Prop. 47 also requires the state to calculate prison savings due to reduced incarceration and use those dollars to reduce recidivism and support crime victims. Since 2016, over $800 million in Prop. 47 savings has been allocated across the state for behavioral health treatment and other critical services that promote community safety.

However, interest groups opposed to justice system reforms qualified Prop. 36 for the November ballot. Their goal is to increase punishment for drug and theft crimes in California, including by reversing key provisions of Prop. 47. Major donors to Prop. 36 include Walmart ($2.5 million), Home Depot ($1 million), Target ($1 million), In-N-Out Burger ($500,000), the California Correctional Peace Officers Association ($300,000), and Macy’s ($215,000).

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Prop. 36 Would Increase Penalties for Several Drug and Theft Crimes

Prop. 36 would amend state law to increase penalties for several drug and theft crimes. These changes would disproportionately impact Californians of color given racist practices in the justice system as well as social and economic disadvantages that communities of color continue to face due to historical and ongoing discrimination and exclusion.

Prop. 36 would increase penalties for drug crimes in multiple ways. Key drug-related provisions of the measure include the following:

Prop. 36 also would increase penalties for theft crimes in multiple ways. Key theft-related provisions of the measure include the following:

Prop. 36 Would Drive Up State Prison Spending and Create Unfunded Costs at the State and Local Levels

By increasing punishment for several drug and theft crimes, Prop. 36 would create substantial new costs — including for incarceration and the court system — at the state and local levels. However, the measure would provide no new revenue to pay for these expenses.¹Prop. 36 states that a person charged with a “treatment-mandated felony” may receive, if eligible, relevant Medi-Cal or Medicare services that are delivered through a court-ordered treatment program. (Medi-Cal is supported with state and federal funding; Medicare is funded solely by the federal government.) Therefore, some federal funding could be available to support services for people who are charged with a treatment-mandated felony and are eligible for Medi-Cal or Medicare. However, the state would have to pay a portion of any Medi-Cal services delivered, and Prop. 36 would not provide any revenue to offset those new state costs. In addition, the costs associated with treatment-mandated felonies represent only part of the substantial state and local criminal justice costs that Prop. 36 would create — costs for which the measure provides no new funding. State and local leaders would face the prospect of curtailing funding for existing public services in order to make room in their budgets for the unfunded costs imposed by Prop. 36.

While Prop. 36 would clearly burden public budgets, the magnitude of the impact is uncertain. Cost estimates have been developed by the nonpartisan Legislative Analyst’s Office (LAO) as well as by Californians for Safety and Justice (CSJ), a leading statewide public safety advocacy group. Both organizations suggest that the cost of Prop. 36 could be substantial, although the LAO’s estimates are significantly lower than CSJ’s.²The substantial gap between these two sets of estimates is likely the result of different assumptions, methodologies, and/or data sources adopted by each organization.

Specifically:

• The LAO estimates that the ongoing increase in state criminal justice costs would likely range from several tens of millions of dollars to the low hundreds of millions of dollars. This estimate reflects a larger prison population — which could grow by “around a few thousand people” — as well as an increase in state court workload.
• In addition, the LAO estimates that ongoing local criminal justice costs would likely increase by tens of millions of dollars due to Prop. 36. This estimate reflects larger county jail and community supervision populations — which, combined, could rise by “around a few thousand people” — as well as higher costs for courts, prosecutors, public defenders, and county agencies like probation and behavioral health departments.
• In contrast, CSJ projects that Prop. 36 would lead to much higher costs. CSJ estimates that combined state and local costs would rise by around $4.5 billion ongoing. For example, CSJ suggests that more than 32,000 additional people would be sentenced to state prison within seven years. CSJ also assumes that over 31,000 additional people would serve one-year sentences in jail each year. These projected increases in incarceration are much higher than what the LAO’s analysis suggests.

Regardless of the magnitude of the costs created by Prop. 36, the result would be the same: elected officials would face difficult choices about how to accommodate these new unfunded costs in their budgets. Such choices could disproportionately harm Californians with low incomes and communities of color depending on which current state and local services were affected by funding reductions.

These tough decisions would come at a time when state and local leaders are already struggling to keep their budgets balanced and ensure ongoing support for core services. For example, the 2024-25 state budget package relies heavily on borrowing from future budgets and only temporarily increases revenues — decisions that could compromise the state’s ability to sustain core programs as well as stall much-needed investments in the coming years. The new unfunded costs imposed by Prop. 36 would make it even more challenging for state leaders to sustain support for core services and maintain a balanced budget.

In addition, Prop. 36 would reverse the modest progress that California has made in controlling state prison spending. Justice system reforms, including Prop. 47, have reduced the prison population and allowed state leaders to end private-prison contracts, begin closing state-owned prisons, and bend the prison cost curve. In fact, prison spending is billions of dollars lower today than it would be absent these reforms. These freed-up dollars have been redirected to critical state services that rely on the state’s General Fund for support.

Moreover, the prison system’s “footprint” on the state budget has been shrinking as reforms have taken effect. The budget of the California Department of Corrections and Rehabilitation (CDCR) comprised over 9% of total General Fund spending in 2013-14 — the fiscal year before Prop. 47 was approved in November 2014. Since then, CDCR’s share of the state budget has dropped to less than 7% as prison spending has grown more slowly than overall state expenditures.

Still, state correctional spending remains too high, and more work is needed to further downsize California’s costly and sprawling prison system. However, the trend has been moving in the right direction, and the significant gains that have been made over the last decade would be eroded if Prop. 36 is approved by voters.

Prop. 36 Would Reduce State Funding for Behavioral Health Treatment and Other Critical Services

By passing Prop. 47 in 2014, voters not only reduced penalties for several low-level crimes and lowered the prison population — they also required state prison savings from Prop. 47 be used for services that reduce crime, support youth, and help crime victims heal. To date, Prop. 47 savings — as calculated by the Department of Finance — exceed $800 million, or around $90 million per year, on average.

Prop. 47 savings are annually deposited into the Safe Neighborhoods and Schools Fund and used as follows:

• 65% for behavioral health services — which includes mental health services and substance use treatment — as well as diversion programs for individuals who have been arrested, charged, or convicted of crimes. These funds are distributed as competitive grants administered by the Board of State and Community Corrections.
• 25% for K-12 school programs to support vulnerable youth. These funds are distributed as competitive grants administered by the California Department of Education.
• 10% to trauma recovery services for crime victims. These funds are distributed as competitive grants administered by the California Victim Compensation Board.

Prop. 47 savings are invested in a broad range of programs that support healing and keep communities safe. For example, a recent evaluation shows that people who received Prop. 47-funded behavioral health services and/or participated in diversion programs were much less likely to be convicted of a new crime. People who enrolled in these programs had a recidivism rate of just 15.3% — two to three times lower than is typical for people who have served prison sentences (recidivism rates range from 35% to 45% for these individuals). These programs are also successful in reducing homelessness and promoting housing stability, with a 60% decrease in the number of participants experiencing homelessness by the end of the program compared to when they enrolled.

Because Prop. 36 would undo key provisions of Prop. 47, the annual state savings from Prop. 47 would decline. The LAO estimates that this reduction would likely be in the low tens of millions of dollars per year, whereas CSJ projects that the state savings would be entirely eliminated.

The most recent estimate of Prop. 47 savings is $95 million, as reflected in the 2024-25 state budget. If Prop. 36 had been in effect this year, these savings would have been tens of millions of dollars lower (based on the LAO’s analysis) or entirely eliminated (based on CSJ’s assessment). Either way, there would be substantially less funding for services that reduce crime, support youth, and help crime victims heal. In other words, Prop. 36 would shift tens of millions of dollars or more each year from behavioral health treatment and other critical services back to the state prison system.

Prop. 36 Could Push More Californians Into Homelessness

Prop. 36 could worsen homelessness in California by pushing more residents into the carceral system, further exacerbating the deep link between homelessness and incarceration. While the lack of affordable housing is the primary cause of homelessness, this detrimental outcome is intensified by incarceration as formerly incarcerated people are nearly 10 times more likely  to experience homelessness than the general population. 

Californians leaving incarceration often face significant obstacles to securing long-term, stable housing, which is essential for reconnecting with support networks, finding employment, and maintaining health. Without proper housing, which Prop. 36 does not account for or ensure, formerly incarcerated individuals are more likely to recidivate and resort to survival crimes, perpetuating the harmful cycle.

A recent statewide homelessness study found that nearly 1 in 5 unhoused Californians (19%) entered homelessness directly from an institutional setting, primarily a jail or prison. Additionally, fewer than 20% of people leaving jail or prison had support finding housing upon their release. Prop. 36 does nothing to address this need and instead reverts funding from existing programs that help unhoused individuals with conviction histories connect with housing, behavioral health treatment, and other necessary services needed to reintegrate.

Further, Prop. 36 fails to follow effective, evidence-based interventions that successfully help individuals obtain and sustain mental health and substance use treatment, with housing as a foundational component. The initiative allows certain people arrested for drug possession to admit guilt (or plead no contest) and have their charges dismissed if they complete court-ordered treatment.

However, completing a treatment program is especially challenging for individuals experiencing housing instability or homelessness. Not having a home causes severe stress and trauma and harms physical and mental well-being, which can trigger or worsen mental health issues and lead to complex coping mechanisms like substance use. Yet there is no guarantee that those who are referred to treatment and who may need housing will receive it in a timely manner, essentially curtailing their chances of completing the program and increasing their likelihood of facing incarceration for up to three years.

Moreover, coerced treatment is antithetical to successful “Housing First” principles, which prioritize permanent housing before addressing treatment and other comprehensive needs. Policy experts also recommend against legally compelling people to comply with treatment for opioid use disorders as an alternative to other sanctions like incarceration. While coerced treatment may help engage people with substance use challenges, it likely has minimal to no effect on treatment retention, remission, and overdose mortality. This approach effectively places individuals in vulnerable positions that can lead to long-term incarceration and an increased likelihood of homelessness under Prop. 36.

Creating Safe and Equitable Communities Requires Smart Investments, Not Harsh Penalties and Mass Incarceration

Creating safe, vibrant communities for all Californians is achievable through intentional investments that uplift opportunities and economic security. Rather than promoting this positive vision for California, Prop. 36 advances an incarceration-focused approach that:

• Fails to prioritize compassionate, evidence-based strategies that help communities thrive and instead would redirect limited state resources to ineffective, punitive, and costly policies.
• Ignores the success of previous sentencing reforms that have reduced mass incarceration while maintaining crime rates well below the peaks of the past five decades.
• Would worsen existing racial, economic, and health disparities among Californians of color, who are already disproportionately represented in the carceral system.

Instead of increasing incarceration, state leaders should prioritize policies and interventions proven to reduce crime, enhance public safety, and expand behavioral health treatment options. Effective measures include increasing affordable and supportive housing, expanding economic security programs, broadening access to health care and behavioral health services, supporting education and youth intervention programs, improving recidivism reduction strategies, and implementing equity-centered policies that target vulnerable residents. By focusing on these proven strategies, we can create safer, more equitable communities for all Californians.

Across California and the United States, the push for bail reform has gained momentum with increasing awareness and research showing the disproportionate impact the money bail system has on people of color and low-income households. In California, it’s estimated over two-thirds of people detained in jails – around 47,000 – have not been sentenced for a crime, a number that includes both those who cannot afford bail and those who are awaiting sentencing post-conviction (Fig. 1).¹These numbers reflect the unsentenced adult daily population in all California jails. Counties are not asked to report the number of unsentenced defendants who remain in custody because they cannot afford to post bail . Board of State and Community Corrections, Jail Population Survey. Data reflect the average daily jail population as of March 2020. https://public.tableau.com/profile/kstevens#!/vizhome/ACJROctober2013/About Los Angeles County alone is the largest jail system in the US and houses over 1 in 5 of adults who have not been sentenced for an alleged crime in California.

Enter Proposition 25 that will appear on the November 3, 2020 statewide ballot and asks California voters to decide whether a 2018 state law that effectively ends money bail should take effect. If voters approve Prop. 25, judges will be able to utilize risk-based assessment tools – examining population links between rearrest or reconviction and individual factors such as age, gender, or criminal record – to determine if individuals detained for certain crimes can be released before a court appearance rather than posting money bail.

Efforts to reform California’s bail system also aim to address the wide racial disparities seen in the criminal justice system. In part, these disparities stem from structural racism that exacerbate the disproportionate level of policing and arrests faced by communities of color. Black Californians currently face higher arrest rates than white Californians in most counties throughout the state, with the wealthiest counties having the largest gaps.²Magnus Lofstrom et al., Racial Disparities in California Arrests (Public Policy Institute of California: October 2019). Nationally, Black and Latinx defendants are also more likely to be held in pretrial custody and have bail set at a higher amount than white defendants.³Wendy Sawyer, How Race Impacts Who is Detained Pretrial (Prison Policy Initiative: October 19, 2019).  With the state’s median bail amount ($50,000) five times higher than the rest of the country (less than $10,000), money bail is particularly costly for Californians compared to residents in other states.⁴Soyna Tafoya, Pretrial Detention and Jail Capacity in California (Public Policy Institute of California: July 2015), p.4. Additional racial, economic, and gender disparities embedded in the money bail system are discussed in this report.

What is California’s Bail Reform Law and Why is it on the 2020 Ballot?

In 2018, state legislators passed a bail reform law called Senate Bill 10 (SB 10), which former Governor Jerry Brown signed.⁹SB 10 (Hertzberg, Chapter 244 of 2018). SB 10 was the culmination of various efforts to replace money bail in California with a non-monetary pretrial system. The primary purpose of the law is to eliminate the money bail system and ensure that if a Californian is awaiting hearings or trial, they are not held in jail because they cannot afford to pay bail (or to pay a bail bond agent’s fee).¹⁰Under the law, if someone were accused of committing a misdemeanor, they would be automatically released, though there are some exceptions, including violations of protective orders, among others. See SB 10 (Hertzberg, Chapter 244 of 2018). To determine who should still be detained, courts would use risk assessment tools, which are intended to predict the chance that someone might not appear for a hearing date or might be rearrested before trial.¹¹Risk-based assessments are typically generated by statistically analyzing large data sets to identify links between rearrest or reconviction and other factors such as age, gender, or criminal record. See Megan T. Stevenson, “Assessing Risk Assessment in Action,” Minnesota Law Review 103:1 (2018), p. 304.

Shortly after the law passed, the American Bail Coalition spearheaded a challenge through a veto referendum petition to place the law on the ballot. 

Under Prop. 25, California voters are asked to decide in November 2020 if they want to uphold the bail reform law or if they want to repeal it. A YES vote on Prop. 25 would allow SB 10 to take effect, effectively ending the state’s money bail system. A NO vote on Prop. 25 would repeal SB 10 and keep the current money bail system in place.

Equity and Safety Concerns about Money Bail

As California, local jurisdictions, and many states examine public safety priorities, and in light of Black and brown communities calling for justice from police and sheriff departments along with courts, many questions are raised about the economic, racial and gender implications of money bail. This also leads to questions about the role money bail plays in deterring criminal activity and accountability for individuals.

Is money bail unfair to low-income Californians?

Requiring people pay bail to secure their freedom before trial disproportionately impacts Californians with low incomes. In 2009, the most recent year for which data are available, the median bail amount in California was $50,000.¹²Sonya Tafoya, Pretrial Detention and Jail Capacity in California, (Public Policy Institute of California: July 2015). Considering median annual household income in 2010 was about $57,700, bail was – and continues to be – set higher than many Californians can afford.¹³US Census Bureau, American Community Survey, 2010 1-Year Estimates. Table S1903: Median Income in the Past 12 Months (In 2010 Inflation-Adjusted Dollars), downloaded from https://data.census.gov/cedsci/table?t=Income%20%28Households,%20Families,%20Individuals%29&g=0400000US06&y=2010&tid=ACSST1Y2010.S1903&hidePreview=true on August 24, 2020.Though the Eighth Amendment protects against “excessive” bail, the Supreme Court has ruled that bail may only be considered excessive if it is more than necessary to achieve the court’s goals, not if bail is more than a person can pay.  The court found that “[t]he plain meaning of ‘excessive bail’ does not require that it be beyond one’s means, only that it be greater than necessary to achieve the purposes for which bail is imposed.” See Pretrial Detention Reform Workgroup, Pretrial Detention Reform: Recommendations to the Chief Justice (October 2017), p. 73. In the majority of cases, Californians must contract with a commercial bail bond agent who posts bail for them.¹⁴In Los Angeles County, San Francisco County, and Santa Clara County, commercial bail bonds were the primary means of posting bail. In one year, cash bonds were used in less than 2% of total cases, followed by property bonds (less than 1%).  See Pretrial Detention Reform Workgroup, Pretrial Detention Reform: Recommendations to the Chief Justice (October 2017), p. 31. Additionally, in 2017, 99.9% of people who posted bail in the city of Los Angeles did so through a commercial bail bond agent. See Isaac Bryan, et. al, The Price of Freedom: Bail in the City of Los Angeles (UCLA Bunche Center for African-American Studies and Million Dollar Hoods: May 2018). In turn, the person has to pay a premium (often 10% of the total bail amount) that is nonrefundable, even if the prosecutor never files charges or if the person is ultimately acquitted.¹⁵The defendant (or their family members and friends) may also face extra costs, such as late payment fees and interest on the premium. See The UCLA School of Law Criminal Justice Reform Clinic, The Devil is in the Details: Bail Bond Contracts in California (May 2017), p. 15. Moreover, as just under 4 in 10 Americans (37%) cannot easily cover an unexpected expense of $400, even this fee could be out of reach of many.¹⁶Board of Governors of the Federal Reserve System, Report on the Economic Well-Beingof U.S. Households in 2019, Featuring Supplemental Data from April 2020 (May 2020). For example, in 2018 in Los Angeles County, assuming everyone eligible for bail turned to a commercial bail bond agent, 95% of people would have had to pay fees ranging from $2,501 to $100,000 (Fig. 2).¹⁷Los Angeles County Sheriff’s Department, Custody Division Population Year End Review, p. 30. With this money bail system, many may simply be unable to pay. In 2017, the majority of bail (81.6%) levied in the city of Los Angeles actually went unpaid and people stayed in jail, either because they could not pay or chose not to.¹⁸Isaac Bryan, et. al, The Price of Freedom: Bail in the City of Los Angeles (UCLA Bunche Center for African-American Studies and Million Dollar Hoods: May 2018).

Does money bail reflect and exacerbate racial and gender inequities?

Due to ongoing over-policing and discrimination, Black and Latinx Californians are disproportionately arrested and detained, and thus are more likely to have to pay bail.¹⁹Magnus Lofstrom, et. al., Racial Disparities in California Arrests (Public Policy Institute of California: October 2019) and Pranita Amatya, et. al., Bail Reform in California (UCLA Luskin School of Public Affairs: May 2017), p. 27. In Los Angeles, Latinx residents paid nearly half (48%) of all non-refundable bail bond deposits, and Black residents paid a quarter (25%).²⁰Isaac Bryan, et. al, The Price of Freedom: Bail in the City of Los Angeles (UCLA Bunche Center for African-American Studies and Million Dollar Hoods: May 2018). Latinx and Black families are less likely to have the means to weather such financial setbacks, as they have less wealth.²¹Esi Hutchful, The Racial Wealth Gap: What California Can Do About a Long-Standing Obstacle to Shared Prosperity (California Budget & Policy Center: December 2018). Money bail may also particularly harm women, who tend to be less likely to afford bail themselves and who are most likely to bear the financial burden of bail and other fees when family members are incarcerated.²²Ella Baker Center for Human Rights, Forward Together, and Research Action Design, Who Pays?: The True Cost of Incarceration on Families (September 2015) and Leon Digard and Elizabeth Swavola, Justice Denied: The Harmful and Lasting Effects of Pretrial Detention (Vera Institute of Justice: April 2019), p. 7. In San Francisco County, for example, most co-signers of commercial bail bonds are women.²³Pretrial Detention Reform Workgroup, Pretrial Detention Reform: Recommendations to the Chief Justice (October 2017), p. 39.

Does money bail deter criminal activity?

One of the common justifications of bail is that it upholds public safety by keeping people who could be dangerous in jail or by discouraging a released person from committing a crime as they await their court hearings.²⁴Judicial Council of California, Bail in California: Legal Framework (February 19, 2016). However, there is no evidence that money bail serves either purpose. Currently, people who are eligible for bail yet remain detained have already been deemed by a judge to be safe enough for release. They only remain in jail because they cannot or have not paid, not because they are a greater safety risk than those who managed to pay. Moreover, money bail may not provide a strong financial deterrent to future offenses. When a person is released on bail, they do not forfeit the total bail amount they paid if they are accused of committing a new offense; they only forfeit bail when they fail to appear for their hearing.²⁵Curtis E. Karnow, “Setting Bail for Public Safety,” Berkeley Journal of Criminal Law 13:1 (2008), p. 20. As a result, there is not a direct link between a defendant allegedly committing a new crime and forfeiting bail.

Does money bail ensure court appearances?

The evidence suggests that the threat of bail forfeitures in the event of failure to appear does not effectively ensure appearances. For those who use a commercial bail bond to pay for their pretrial release, the fee they pay to the bail agency is nonrefundable whether they later show up to court or not. For those who pay their own bail, the threat of forfeiture is not the determining factor in if people appear. Research suggests failure to appear may be more indicative of  personal circumstances and, potentially, the length of pretrial detainment.²⁶While a frequently cited study conducted in Kentucky found pretrial detention increased a defendant’s likelihood to fail to appear for court, these results have not been replicated. A growing body of evidence actually hints that pretrial detention reduces failure to appear rates. Léon Digard and Elizabeth Swavola, Justice Denied: The Harmful and Lasting Effects of Pretrial Detention (Vera Institute of Justice: April 2019), p.3. Generally, very few people released pretrial purposefully miss their court dates, and those who do miss them eventually appear for court on their own. If a person does fail to appear, it is often attributed to lack of child care, work, homelessness, disability due to a serious mental illness, negligence, or error.²⁷Human Rights Watch, “Not in it for Justice:” How California’s Pretrial Detention and Bail System Unfairly Punishes Poor People (April 11, 2017), p.7.

Some suggest that because the bail bond agents are financially liable if a person does not show, they are encouraged to ensure an appearance. However, there is no strong evidence supporting the notion that bail bond agents in California directly ensure a defendant appears for court.²⁸Pretrial Detention Reform Workgroup, Pretrial Detention Reform: Recommendations to the Chief Justice (October 2017), p. 36. Studies conducted in San Francisco and Santa Clara County found that although bail bond agents are responsible for a defendant, the responsibility often falls on the county to provide pretrial supervision and recover fugitives who are in custody.²⁹Pretrial Detention Reform Workgroup, Pretrial Detention Reform: Recommendations to the Chief Justice (October 2017), pp. 39-41. Moreover, if a defendant does not appear for their hearing, it is rare for bail bond agents to pay the total remaining bail amount because of strict and costly forfeiture laws courts must follow to receive full payment.³⁰Pretrial Detention Reform Workgroup, Pretrial Detention Reform: Recommendations to the Chief Justice (October 2017), p. 37.

Equity and Safety Concerns about Pretrial Detention

As the equity and public safety concerns are weighed about reforming bail in California, this option also brings up questions about pretrial detention, which Prop. 25 does not end. It is important to understand the economic and public safety aspects of pretrial detention for Californians held in jail, their families, and the larger community.

Does pretrial detention unfairly punish people and their families?

While someone is in jail, they lose their freedom, are unable to go to work, are unable to care for their children and other dependent family members, and risk losing their housing.³¹Shima Baradaran Baughman, “Costs of Pretrial Detention,” Boston University Law Review 97:1 (2017) p. 5. Detention can therefore be regarded as a way of punishing people who have not even had their day in court. Detention can also have further implications for a person’s case. Research indicates that when compared to similar defendants who are released, those who remain detained are more likely to plead guilty, to be convicted, and to receive harsher sentences.³²United States Department of Justice, National Institute of Corrections, “Pretrial,” accessed at https://nicic.gov/pretrial on July 6, 2020 and Leon Digard and Elizabeth Swavola, Justice Denied: The Harmful and Lasting Effects of Pretrial Detention (Vera Institute of Justice: April 2019), pp. 3-5. Results of a study of one Texas county suggested that 17% of jailed residents who pleaded guilty would not have been convicted at all if they had been released pretrial, suggesting that they may have pleaded guilty just to secure their release.³³Data reflect misdemeanor defendants. In the study, detention increased the likelihood of pleading guilty by 25%. Paul Heaton, Sandra G. Mayson, and Megan Stevenson, “The Downstream Consequences of Misdemeanor Pretrial Detention” Stanford Law Review 69:3 (2017), p. 771. Californians and their families–particularly those who are Black, Latinx, or who have low incomes– bear these costs irrespective of whether they are ultimately acquitted, convicted, or their charges are dismissed.

Does detention raise public safety concerns?

Research shows that even short periods of pretrial detention will increase an individual’s risk of allegedly committing more crimes, not reduce it. A study conducted in Harris County, Texas, the fourth largest county in the US, found pretrial custody was associated with a 20% increase in new misdemeanor charges and a 30% increase in new felony charges 18 months after a defendant’s initial post-bail hearing.³⁴Paul Heaton, Sandra G. Mayson, and Megan Stevenson, “The Downstream Consequences of Misdemeanor Pretrial Detention” Stanford Law Review 69:3 (2017), p. 718. In California, research found that large urban areas which heavily rely on pretrial detention experienced higher rates of failure to appear in court and higher levels of felony arrests during a defendant’s pretrial period, compared to other urban areas nationally which did not heavily rely on pretrial detention.³⁵Sonya Tafoya et al., Pretrial Release in California (Public Policy Institute of California: May 2017), p. 5. These findings suggest that the use of money bail acts as a deterrent to public safety and ultimately contributes to outcomes that come at a greater cost to society and leads to more incarceration. And while opponents of bail reform also point to increasing levels of offenses in New York that implemented bail reform similar to risk-assessments, these statistics have been criticized because of the short analysis period and potential data manipulation.³⁶The New York state legislature has since amended their bail reform law with a number of changes that took effect in July.  See Jamiles Lartey, New York Rolled Back Bail Reform. What Will the Rest of the Country Do? (The Marshall Project: April 23, 2020).

Equity and Safety Concerns about Risk Assessments

Providing a judge with more information about a Californian who has been arrested, assessing whether the individual is a risk to the community, and determining if the person should be freed without paying bail until the next decision in a case – this is the essence of risk assessment tools and Prop. 25. Risk assessment tools, as many parts of Californian’s vast criminal justice and public safety system, bring up concerns about racial, gender, and socioeconomic disparities.

Can risk assessment tools effectively predict criminal activity or likelihood to appear?

Under the existing cash bail system, when judges set a bail amount, they are intended to base their decision on the severity of the alleged offense, their estimate of a person’s probability to reoffend and flight risk. As California’s bail reform law eliminates bail, courts would have to focus more of their efforts on deciding who to detain. As written, the law specifically instructs courts to use “accurate and reliable” risk assessment tools to help make these decisions.³⁷SB 10 (Hertzberg, Chapter 244 of 2018). Proponents of these tools argue that they will prevent judges from making subjective error-prone determinations.³⁸Megan T. Stevenson, “Assessing Risk Assessment in Action,” Minnesota Law Review 103:1 (2018). p. 305. However, evidence of the effectiveness of pretrial risk assessments is unclear. While in theory such algorithm-based assessments could be effective at predicting who is likely to miss court appearances or to be rearrested, their impact depends highly on the design and underlying assumptions, as well as on how these tools are implemented.³⁹Megan T. Stevenson, “Assessing Risk Assessment in Action,” Minnesota Law Review 103:1 (2018). pp. 306-307, 310-11, 327. Additionally, depending on the tool, the data it relies on, and the people interpreting it, pretrial risk assessments may have built-in racial and implicit biases.

Can risk-based assessments contribute to disparities in the criminal justice system?

Risk-based assessment tools could also exacerbate racial, gender, and socioeconomic disparities in the criminal justice system. This is because risk-based assessment algorithms incorporate existing criminal justice data, which reflect that communities of color are often overpoliced.  Therefore, defendants who reside in communities that have high levels of crime are more likely to be considered “high risk” because of where they live than those who live in more affluent neighborhoods. However, research also shows that defendants detained in jail while awaiting trial are more likely to plead guilty, be convicted, be sentenced to prison, and receive harsher sentences than similar defendants who are released during the pretrial period. Given that people of color and those with low incomes are the majority of individuals overpoliced and arrested, the current money-based pretrial detention system also drives these gaps.