The ACLU of Southern California opposes Prop 25 and says: NO on Prop 25 that would eliminate money bail, but replace it with risk assessment tools that are racially and socioeconomically biased. It would also expand police agency funding.

• SUPPORTERS of Prop 25 and the elimination of cash bail include: the California Democratic Party, California Teachers Association, Contra Costa DA Diane Becton, and the League of Women Voters. 
• OPPONENTS of Prop 25 include: most Bail Bond companies and their representative organizations, the California Republican Party, Howard Jarvis Taxpayers Association, Human Rights Watch, California NAACP State Conference, and the ACLU of Southern California.

Everyone is innocent until proven guilty. Unfortunately, if someone does not have cash or collateral to post bail, they will likely sit in jail until trial. The result is lower income Californians losing jobs, housing, and their families as they wait for the opportunity to defend themselves at trial. Alternatively, they accept a bad plea bargain (despite their innocence) in order to get home to their work and kids.

Proposition 25 is a referendum put on the California ballot to have the People approve or reject a law passed in 2018 (by State legislators and signed by then Governor Brown) to eliminate cash bail. 

At any given time, our local County jails house about 2/3rd people awaiting trial, and 1/3rd people serving time. The 66% awaiting trial are presumed innocent under our Constitution. Of course, a small number of those awaiting trial are considered dangerous to the community or a serious flight risk and are detained to make sure they appear for their trial. However, the rest are people that are confined because they didn't have money to pay for bail. Their lack of money is the reason they are locked up. Moreover, in California, 6.6 percent of defendants out on bail fail to appear at trial, almost triple the national rate.

Without a bond to guarantee an appearance, why would anyone show up? The vast majority of people facing charges show up to court for the same reason that the vast majority of people pay their taxes: it's a hassle and sometimes unwarranted and unfair, but it's something that must be done. Even for people who know they are going to be convicted of their charges show up to trial because the alternative is a compounding of their crimes and more penalties.

In the current system, almost everyone has an opportunity to post bail. To be denied bail would require the defendant to be an imminent threat to others, or likely to flee justice. The bail set may be high, but at least it is a known quantity versus what one may experience in jail.

In a post-bail California, the Probation departments in the fifty-eight California counties would set their own criteria for determining if a person could go free, or not. Fifty-eight different county probation departments would administer risk assessment tools and conduct the supervision and monitoring of anyone released pretrial. Also, judges would have broad leeway to interpret the eligibility for pre-trial release. That means 58 different algorithms and the possible minute-by-minute whim of every judge will decide who is free and who is denied release. That is 58 opportunities for bad or biased data and hundreds of judges to deny release based on their own interpretations of the algorithm. Some counties may be fair, but some counties wouldn't be.

What would a “bail hearing” look like without cash bail? For most misdemeanors, this means immediate release for the defendant. Cases involving more serious crimes and/or a greater risk to not appear, the judge could mandate a tracking device, weekly check-ins with the Court, or mandatory counseling. On the far end of the spectrum, a computer analysis combined with a judge's discretion would make release impossible, regardless of ability to post bail.

The ability to ensure incarceration before trial gives judges and prosecutors a powerful tool to pressure an innocent defendant to take a plea, or confess to bogus charges, in order to avoid further detention.

“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.” 

While reforming the bail process is needed, Prop 25 may not be the solution that we are looking for.

Attorney Joseph Tully Bio

Author and Lawyer Joseph Tully brings a passion to law practice rarely seen among criminal defense lawyers and it drives his extraordinary record of positive outcomes. The Tully and Weiss firm's criminal law office is California with offices in Martinez, San Francisco, Redding, Fresno, and Redondo Beach. Mr. Tully and team outwork and out-prepare prosecutors to combat the California's massive law enforcement and judicial advantages over an individual. This imbalance of power against the innocent is the topic of Mr. Tully's book California: State of Collusion. Joseph Tully is a Certified Criminal Law Specialist, an elite certification awarded to less than 1% of California lawyers by the California State Bar Board of Legal Specialization. In addition, Joseph Tully has been listed among the National Trial Lawyers' “Top 100 Trial Lawyers” multiple years. He has an extraordinary record of victories in high profile trials from Redding to LA to Contra Costa County and multiple precedent-setting wins in self-defense trials. His diligence and meticulous preparation resulted in scores of great outcomes for cases others declared impossible. Contact Tully & Weiss here for legal help statewide.