Every two years, we in California are treated to a smorgasbord of referenda and initiatives on our election ballots, the byproduct of the progressive era movement toward direct democracy that dates back to 1911. I would venture that few take the time to study each issue and often the wording is so cloaked in legalese that it raises more confusion than clarity.
In the most recent election, we were treated to Proposition No. 25, also known as Referendum on Law that Replaced Money Bail with System Based on Public Safety and Flight Risk, asking citizens whether they approved 2018 state legislation, codified in Senate Bill 10, that replaced cash bail with risk assessments for detained suspects awaiting trials. Whew, got that? A “Yes” vote would uphold the legislation and a “No” vote would repeal the contested legislation. The final statewide tally was roughly 56 percent in favor of repeal.
The November vote would also see the citizens of Los Angeles County vote for George Gascón to replace Jackie Lacey as district attorney by a vote of roughly 53 percent to 46 percent. Interestingly, one of the first directives he issued was to “outline the new policies and protocols that will guide our recommendations for pretrial release and the use of cash bail moving forward.” The directives emanating from the district attorney’s office have sparked considerable and heated debate pitting civil rights organizations and activists against not only the moneyed interests representing the cash bail industry but also against one another.
We are all familiar with and sympathetic to the legal canon that all persons are innocent until proven guilty and the right to a speedy trial enshrined in the Sixth Amendment to the U.S. Constitution. Extensive reliance upon cash bail requirements favor those who can afford payments at the expense of those who cannot. At any point in time, more than 740,000 individuals are being held in local jails across the country and more than 65 percent are simply awaiting their day in court.
According to a memo outlining the district attorney’s directives, the “negative consequences of cash bail have fallen unequally on the shoulders of low-income communities of color in LA County. Of the 5,885 people detained pretrial in August 2020, 84 percent were people of color and nearly half (42%) were incarcerated for non-serious, non-violent offenses. These individuals jailed pretrial spend, on average, 221 days in jail without having been convicted of a crime.”
Gascón’s memo concludes “it is time for a change,” and that it is time to adopt “a more just approach to prosecution by seeking to undo the legacy of cash bail while still fulfilling our obligations to protect public safety.”
While deputy district attorneys shall not request cash bail for any misdemeanor, nonserious felony or nonviolent felony offense, the new directives do allow for stipulations that can warrant bail, including: felony offenses involving acts of violence on another person; or felony offenses where the defendant has threatened another with great bodily harm; or felony sexual assault offenses on another person.
For those still wrestling with the proposition that systemic racism is seriously at play in incarceration rates, a recent study by the Brennan Center for Justice released in September outlines some sobering statistics: The report finds that “a century ago, a Black man was four times as likely as a white man to be incarcerated. In 1980 ... he was 11 times as likely; Black men and women are also jailed at more than triple the rate of white men and women; nearly half of all people serving effective life sentences are Black; and perhaps most disturbingly, Black men and women are far more likely to be the victims of police use of force.”
How large a problem is mass incarceration in the United States? Prison rates in the U.S. are the world’s highest, at 724 people per 100,000. The American criminal justice system holds almost 2.3 million people in 1,833 state prisons, 110 federal prisons, 1,772 juvenile correctional facilities 3,134 local jails, 218 immigration detention facilities, and 80 Indian Country jails as well as in military prisons, civil commitment centers, state psychiatric hospitals and prisons in the U.S. territories.
The criminal justice system is broken and requires extensive retooling that maintains a delicate balance between public safety and flight risk. The racial implications of the cash bail issue require careful study and public dialogue. Combined with the general acknowledgement that the criminal justice system and policing policies and practices are in need of substantial reform—not defunding but actual reform—we must render complex solutions to complex problems. But it is absolutely essential that we maintain fairness and justice so that Lady Justice righteously wears the blindfold that she has worn in sculptures since the 15th century.