“Yes” or “no.” These are the choices we get when we vote. If only the issues the proposed policy changes attempt to tackle were so simple. If only justice was a question to which we could just say “yes.”

If you make it to the end of your ballot, your final choice will be for Prop. 25, a referendum that could end cash bail in California. But the proposed replacement is also harmful. Allowing these two choices to dominate the conversation around pretrial reform ignores the need for a complete overhaul of that system. 

California’s current cash bail-based pretrial release system is especially unforgiving of marginalized groups, including women and Black and Latinx people. Women are more likely than men to be unemployed at time of arrest, making it difficult to post bail. Black and Latinx individuals from lower income communities are disproportionately arrested and have less financial resources compared to their white counterparts.

But even if Prop. 25 passes and ends cash bail, we won’t be in a better place. Its replacement will target the same marginalized groups cash bail does.

Prop. 25 lays out implementation of a risk assessment tool (RAT) for judges to use in making pretrial release decisions. RATs use an algorithm trained with historical data to determine if someone is a low, medium, or high risk of failing to appear in court, or if they present a danger to public safety. 

These tools don’t explicitly collect data on a person’s race, but “risk factors,” like what neighborhood someone lives in and their prior conviction record, are systemically associated with race. 

A pair of hands bound by handcuffs that represent the shackles of cash bail. Behind them are motifs of the dangers of algorithm-driven justice.
Illustration by Ryan Tran.

A 2016 ProPublica report showed that one RAT falsely classified Black defendants as medium or high risk almost twice as often as white defendants. 

Should Prop. 25 pass, the policy advises judges to put “significant weight” behind the RAT recommendation. This system would not resolve the racial biases of cash bail, but would expand them under the guise of coded objectivity.

No matter the outcome of this referendum, the California criminal justice system will still be morbidly reliant on pretrial detention. In June 2020, an average of 39,137 Californians sat in jail unsentenced every day. In the Santa Cruz Sheriff’s Department jurisdiction, the average daily jail population of unsentenced individuals in June was 204 people, or 86 percent of the total daily jail population. 

Pretrial detention threatens people’s job security during their jail stay, becoming a permanent stain on their record. It also endangers their housing security, as 23 percent of people facing pretrial detention lose their rental housing, and the odds they’ll experience houselessness increase from 1 in 200 to 1 in 11. During a pandemic, the combination of overcrowding and poor medical care in jails is exceptionally dangerous.

Pretrial detention is just one cog in the prison-industrial machine that dehumanizes the most marginalized in society. So how do we take down this machine that powers the U.S. as we know it?
The answer is not a straightforward one, and it certainly isn’t a “yes” or a “no” on Prop. 25. If the referendum passes, learn more about decarceration organizing and strategies to dismantle RAT systems. If it fails and cash bail continues, support a local bail fund like NorCal Resist through small donations or other mutual aid. And continue to complicate the narrative around policies for which “yes” or “no” is not a satisfactory answer.