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The fate of California’s controversial cash bail system is in the hands of voters, but disagreements over what could take the place of bail has divided those who have long fought to bring it to an end.

If approved, Proposition 25 would overhaul the pretrial system by doing away with cash bail and instituting a risk assessment system to determine if a defendant should remain behind bars while they await their day in court.

Civil rights groups have long fought against the cash bail system, arguing that it allows wealthy defendants to buy their way out of jail while they await trial, leaving the less-well-off stuck behind bars, potentially for lengthy stretches, without having been convicted of a crime.

“People who commit minor crimes and can’t afford to pay their bail sit in jail, while people who commit major crimes and can afford to bail out get out of jail,” Loyola Law School Professor Eric Miller said.

Those advocating for tougher criminal penalties, including many in law enforcement and the bail bonds industry itself, have long opposed changes to the current system, worrying that the release of more defendants could put public safety at risk.

Under Proposition 25, most booked for misdemeanor charges would be quickly cited and released. Those charged with felonies and certain misdemeanors – such as those accused of domestic violence or sex crimes or who have a history of not showing up to court – would undergo a risk assessment.

For those assessed as low or medium risk, a judge would have the discretion to decide whether they should be released and under what terms.

Supporters say this would result in a system in which lower risk defendants wouldn’t have to spend months in jail awaiting trial, or be forced to pay large sums to secure their freedom.

“That sends people home to prepare for trial, it doesn’t destabilize them or take away family assets,” said John Bauters of Alliance for Safety & Justice, which supports the proposition. “It also means the jail space is reserved for dangerous people.”

But the proposed move to a risk assessment model has split criminal justice reform advocates, with some worried that the “algorithms” that go into such models could deepen racial disparities. Factors such as previous arrests or convictions can be impacted by structural racism within the criminal justice system, some critics of the risk assessment system argue.

“People who have no business getting out of jail will get out and a lot of people who have no business being in jail will be held,” said Mike Gatto, an attorney and former state assemblyman who is working with the No on Prop 25 campaign.

Bauters said he understands the concerns raised by those who worry about the risk assessments, noting that “the bill has never pretended it could eliminate racism.” But he argued that it could help move toward a more racially fair system.

“We are moving the needle significantly,” Bauters said. “The bottom line is that you can’t do that with a cash bail system.”

Virginia Blumenthal, one of the leading criminal defense attorneys in Riverside County, said she supports allowing those who cannot afford bail to be freed on their own recognizance. But Blumenthal said current law is “poorly written” because it can cause innocent people who cannot afford bail to be detained for lengthy periods.

Under the proposed law, Blumenthal said, a person charged with a serious crime such as murder would not likely be allowed out of jail before trial because a judge might consider that defendant to be a risk to the public. Previously, however, even some murder defendants would have the opportunity to post bail.

“I can’t tell you how many people who have posted $1 million bail have had not-guilty verdicts,” Blumenthal said.

Blumenthal said she would support a law that allows those who can’t afford bail to be released and those who can afford bail to post it in the case of serious crimes.

Local district attorneys are split on the proposition.

Los Angeles District Attorney Jackie Lacey said she supports Prop 25.

“It represents the continuation of my long-standing commitment to developing an effective alternative to the cash bail system that does not penalize low-income people, ensures public safety and protects the rights of crime victims,” Lacey said in a statement. “In Los Angeles County, we have established two major bail reform projects that demonstrate our determination to lead California in this new and more equitable direction.”

Orange County District Attorney Todd Spitzer and Riverside District Attorney Mike Hestrin said they have not taken public positions on Prop 25.

Hestrin has previously generally noted that “any changes to the cash bail system must protect the public and the victims of crime from additional harm,” his office said. Over the summer, when court closures due to the coronavirus led to the temporary institution of “zero bail” across the state, Spitzer raised concerns about potential public safety impacts.

San Bernardino County District Attorney Jason Anderson said he is against Prop. 25 as it is written. For one thing, he said, the California constitution requires bail.

“I think there’s a way to have a risk-assessment approach but still have a component of bail,” he said. “I do not believe the sole consideration should be economics as to whether someone should stay in custody.”

Anderson said that when the state did the zero-bail test run, “We had a lot of people being re-arrested quickly and people joking about being out.”

Fausto Atilano 25 years ago founded Fausto’s Bail Bonds, which has 17 locations and 72 employees. He worries about the effect Prop. 25 would have on the industry and the people who work for him.

“I built this huge empire and living the American dream, and they want to pull the rug out from underneath me,” he said.

Atilano said his industry provides an important service by guaranteeing a defendant’s appearance in court. Some defendants, he said, will see Prop. 25 as a means to be freed to commit more crimes without repercussions. He said he believes the decision as to who gets out and who stays in jail will be too subjective.

“You are giving all the power to the man in the black robe,” Atilano said.

A report by the nonpartisan Public Policy Institute of California found that an estimated 38 percent of people arrested a year would likely undergo risk assessments, with around 25 percent of booked arrestees likely seeing changes in when they would be released.

The report also found that due to “existing inequities in arrest, booking and criminal history would likely lead African Americans to be held more often for risk assessment than any other racial groups,” though it added that “greater consistency in booking practices could mitigate some racial inequity.”

As a result, the report found, the move to a risk assessment model “would likely achieve the goal of releasing more people sooner, but it would not address longstanding inequities in bookings and arrests,” making it “vital to thoroughly evaluate the existing system and the impacts of any future reforms.”

A bill ushering in the bail reform system was approved by the state leaders in 2018 and signed into law by then-Gov. Jerry Brown. The bail bond industry mounted a challenge, and the law was put on hold pending the current voter referendum.