It’s never easy to convince Californians they should reverse decisions made by the legislators they elect, as Republicans led by the failed gubernatorial candidate John Cox discovered last fall.
Cox made his pet proposition, a referendum to repeal a 12-cent gasoline tax increase passed in 2017, the centerpiece of his run for governor, but saw it lose by a 57-43 percent margin, not even close.
But California referenda – the term for propositions aiming to overturn laws passed by the Legislature – can win, as sponsors of a 1982 measure proved when they overwhelmingly killed a plan called the Peripheral Canal, designed to move Northern California river water south around the Delta of the Sacramento and San Joaquin rivers.
And now, anyone looking for a nearly guaranteed winning proposition in next year’s election should check out an already-qualified measure to repeal last year’s law eliminating the centuries-old cash bail system from California criminal courts.
This law, quickly signed by ex-Gov. Jerry Brown after it passed last summer, appears doomed by the new referendum sponsored by the state’s more than 3,000 bail bondsmen. They, of course, have a vested interest in keeping the present system: If cash bail goes, they would lose established businesses, jobs and income amounting to about $2 billion per year.
Ending cash bail looks like a loser not for legal reasons, but because it draws opposition from both the left and the right. Republicans like Cox and the GOP’s defeated candidate for state attorney general, Steven Bailey, instantly condemned the new law, passed as SB 10, claiming it was both soft on criminals and unconstitutional.
Their claim won’t be tested unless the bail bond industry’s proposition fails in late 2020. That’s because the no-cash-bail system SB 10 set up is now in abeyance even though Gov. Gavin Newsom tentatively budgeted $75 million to get it going.
So strong is the support for cash bail that this referendum qualified for the ballot in near-record time. Sponsors had 90 days to gather the 365,888 valid voter signatures needed to put their proposition on the ballot. They took just 70 days and collected more than 576,000.
Support for keeping cash bail, at least for now, comes from both liberals and conservatives. The American Civil Liberties Union and others on the left initially supported SB 10, but were turned off by the system that would replace cash bail if the law ever takes effect. This plan was added into the bill in the last hours before it passed, and criminal justice critics fear it might result in keeping more pre-trial defendants in custody than cash bail ever has.
The planned new system, called “risk assessment,” would rate all persons bound over for trial in California for their likelihood of disappearing or committing more crimes if left free while awaiting court appearances. People accused of misdemeanors would have to be freed within 24 hours no matter their background.
The ACLU, for one, fears the new system could give judges new power to hold felony defendants indefinitely before trial, and might perpetuate racial or religious prejudices, leading to more persons languishing in jail than now do.
While Republicans opposed the no-cash-bail law, Newsom and other Democrats praised it, saying money should never decide whether a defendant stays in jail, isolated from family and friends.
Without doubt, money can do that now: If a defendant cannot make bail or afford the 10 percent down payment on bail usually required by a bondsman, that person stays in custody.
The bail industry also claims the new system would be unsafe. “Where it has been used, (some) violent offenders have been declared “safe,” while others with minor blemishes on their records have been deemed “high risk” and left stuck in jail,” said Jeff Clayton, executive director of the American Bail Coalition.
Another factor: While California is as solidly “blue” politically as any state in America, it also has a long history of passing tough anti-crime measures like “three-strikes-and-you’re-out,” and by large margins.
Taken together, all this makes the new referendum almost a sure thing for passage, which would send would-be criminal justice reformers back to their no-cash-bail drawing boards.