Those Who Fight for Pretrial Justice Say No to Prop 25

Editor's Note:

The following piece originally appeared in the Mercury News.

As a public defender, community organizer, and retired judge/former Independent Police Auditor we care deeply about justice in the courts.  It is easy to agree that our current cash bail system has serious flaws.  But replacing a discriminatory cash bail system with an an even worse risk assessment-based system that creates more ways to keep people in jail pretrial, is not the solution. That is why we strongly urge our community to vote no on Prop. 25.

We are voting “no” on Prop. 25 because the actual details of implementation amplify much of the current injustice in our criminal court system.  A close reading of the fine print of Prop. 25 reveals three problematic flaws.

First, Prop. 25 is based on controversial risk assessment tools — an artificial intelligence instrument that analyzes a person’s socio-economic background, past convictions, age, and other factors to “predict” risk levels for the potential of committing a new offense or likelihood of returning to court. This computer generated predictive model is widely criticized by leading national civil rights organizations and data scientists for perpetuating the very bias of the system it purports to address. Policing and prosecution have been biased against Black and Brown communities for generations; consequently, the data used to determine future potential risk is inherently discriminatory as well. The more a community is policed, the more it has system contact, and more system contact is reflected in the risk assessment score. This flawed reliance on predictive tools fails to remedy the basic injustice of the cash bail system: unfair pretrial detention of those who are presumed innocent.

Second, Prop. 25 gives too much discretion to law enforcement.  Once an arrestee is designated “low,” “medium” or “high risk,” Prop 25 carves out numerous categories of exceptions for how an arrestee is treated, with more harsh treatment and longer pre-trial detention for people arrested or charged with certain offenses, even though the risk assessment results have demonstrated that the booking or charging decision itself provides no predictive information. For example, imagine that two roommates argued while drinking beer and one roommate threw a beer bottle at the other.  If the police arrest the bottle-thrower for felony assault with a deadly weapon (a strike offense), that arrest decision will result in prolonged incarceration, even if the bottle thrower is deemed to be low risk.  If the police arrest that same bottle-thrower for a non-strike felony or misdemeanor assault, the bottle-thrower would be released pre-trial.  Basing the duration of a person’s pretrial incarceration on a police officer’s decision is unfair.  Giving more discretion to police officers without any check or balance will disproportionately affect neighborhoods of Black and Brown residents that are more heavily policed. Plus, in every county besides Santa Clara County, Prop. 25 mandates that pretrial services be run by probation departments rather than community providers — giving resources to law enforcement, rather than to the community.

Finally, Prop. 25 asks voters to enact a law, without informing them of its troubling legislative history.  When the bill that has now been amended into Prop 25 was first introduced in the Legislature, it had the community-based support of advocacy groups including Silicon Valley De-Bug and the Northern California ACLU.  In the Legislature, it was amended beyond all recognition and finally re-written to include a provision called “Preventive Detention” — which expands judges’ ability to incarcerate people pretrial who are, by law, presumed innocent.

Voters should know that the law that is now on the ballot as Prop. 25 lost the support of its original sponsors. The bill became so unrecognizable and antithetical to the civil rights struggle for pretrial justice that the amendment process resulted in sponsors such as Silicon Valley De-Bug actively opposing the bill.

We want to end cash bail, but we  are unwilling to expose our communities to something worse.  Vote no on Prop 25

LaDoris H. Cordell is a retired Superior Court judge and former independent police auditor for San Jose. Carlie Ware is a Santa Clara County Deputy Public Defender who runs the Pre-Arraignment Representation and Review Unit. Raj Jayadev is the coordinator of Silicon Valley De-Bug.