Voters keep cash bail, allow felons to vote, reject Penal Code changes

California voters have decided to keep cash bail in place, restore voting rights to felons released on parole and reject proposed changes to the Penal Code that would reclassify some misdemeanors as felonies, according to data from the state.

The results of Tuesday's primary election may not be final for several days as mail-in ballots and provisional ballots continue to be tallied, Secretary of State Alex Padilla said Wednesday morning. However with 99% of precincts reporting, many have begun declaring victory on measures where the deficit appears insurmountable.

Bay Area counties were mostly isolated in their support of upholding a 2018 law passed by the Legislature that sought to replace California's cash bail system with a risk assessment system guided by computer-generated algorithms. Aside from Alpine County, which voted yes by a 71-vote margin, the rest of the state rejected Proposition 25, creating a conflict as some Bay Area prosecutors have said they won't seek cash bail even if the voters say they want it.

"Although the law does not require it, my conscience requires it," Santa Clara County District Attorney Jeffrey Rosen, who helped write SB 10, the law that eliminated cash bail, said Wednesday. "Poor people charged with minor crimes should not spend any time in jail for lack of money. A wealthy defendant charged with violent crimes should not go free because they have plenty of it."

San Francisco District Attorney Chesa Boudin pledged in February, a month into his first term, that his office would rely on computer algorithms to decide whether a pretrial defendant poses a flight or safety risk rather than requesting bail. Another Bay Area critic of cash bail is Contra Costa County District Attorney Diana Becton, who signed an amicus brief in a California Supreme Court case arguing the system is unconstitutional.

The referendum to overturn SB 10 was put on the ballot by the bail bonds industry after more than 570,000 people signed a petition to do so. The threshold to get the measure on the ballot was 365,000 signatures.

With 99% of precincts reporting Wednesday, according to Padilla, opponents of Proposition 25, which include some defense attorneys and civil liberties groups, held 55% of the vote.

Defense attorneys have said they aren't confident that there would be sufficient mechanisms in place to address racial inequities in computer-generated algorithms that risk assessment tools would rely on. Others have raised broader questions about the accuracy of the results.

More than 100 civil rights groups, including the NAACP and the American Civil Liberties Union, opposed the measure, arguing the computer-generated risk assessments produce discriminatory results.

Eric Schweitzer, president of California Attorneys for Criminal Justice, a statewide group of private and public defense attorneys, said the state must now rely on a 2018 appellate court ruling that found money bail is unconstitutional and held judges must consider a defendant's ability to pay when setting bail. In August, the California Supreme Court said that decision should be treated as precedent until oral argument is heard. In re Kenneth Humphrey, S247278.

"Courts are now mandated to consider alternative conditions for release," Schweitzer said Wednesday. "Policymakers, including district attorneys, are now possessed with a solid starting point for thorough reforms to pretrial detention."

The measure would have made California the first state to eliminate cash bail entirely, although 49 of the state's 58 counties already use pretrial risk assessment tools alongside bail, according to a recent report by the Public Policy Institute of California.

Opponents of Proposition 20, which would have reclassified some misdemeanors as felonies, held a sizable 24 percentage point lead with 62% of the vote on Wednesday. Called the Criminal Sentencing, Parole and DNA Collection Initiative, the measure would have expanded the list of felonies and sentence enhancements that are considered violent for which early parole can be denied, rolling back some provisions of a 2016 law.

Former Gov. Jerry Brown, who signed Proposition 57 in 2016 expanding parole opportunities for some felons, donated $1 million in October to defeat Proposition 20.

If the measure had passed, it would have also re-categorized certain crimes such as vehicle theft and unlawful use of a credit card as wobblers, meaning they could be charged as either felonies or misdemeanors. Criminal defendants convicted of certain misdemeanors that were classified as wobblers or felonies before 2014 would have also been required to submit DNA to state and federal databases.

Prosecutors throughout the state were split on the measure, with some saying it would be a step backward for the state's criminal justice system while others said it would increase protections for crime victims.

Sacramento County District Attorney Anne Marie Schubert told the Daily Journal recently she felt the provision requiring DNA collection would have created an opportunity to solve more violent crimes and exculpate more innocent people. She also said the measure would have brought "the definition of violent crime in line with common sense and universally accepted reality."

"The simple truth is that domestic violence, rape of an unconscious person, human trafficking of a child, assault with a firearm, and solicitation to commit murder are violent offenses," Schubert said. "Yet, each is considered 'non-violent' under current California law -- a designation that makes those convicted of these crimes eligible for early release from prison."

Santa Clara County District Attorney Jeffrey Rosen told reporters at a recent news conference the measure would have taken California back to the war on crime era by imposing unreasonably harsher punishments on criminals in an attempt to support victims.

Voting rights will now be restored to more than 50,000 parolees if preliminary voting results for Proposition 17 stand, according to data from the California Department of Corrections and Rehabilitation.

Proposition 17, which was supported by 59% of voters as of Wednesday, would amend the state Constitution to restore voting rights to felons released from prison but who are on parole. The state Constitution has prohibited parolees from voting until their incarceration and parole period are completed.

The state was largely split on the measure, with the Central Valley and some Northern counties voting no and the rest of the state voting yes, data from Secretary of State Alex Padilla shows.

Proposition 17, introduced by Assemblymember Kevin McCarty, D-Sacramento, was widely supported by California Democrats, including U.S. Sen. Kamala Harris and Gov. Gavin Newsom. Opponents included the California Republic Party and State Sen. Jim Nielsen, R-Tehama.

The measure builds on one voters approved in 1974 that extended voting rights to all formerly incarcerated felons who were no longer on parole.

The preliminary approval of the measure was a win for all formerly incarcerated felons, Padilla said Wednesday.

"This morning, I'm hopeful for the 50,000 Californians who can now vote again and have a say in the future of their community," Padilla said on Twitter.

However, Padilla said the results are unofficial and that the state has until Dec. 11 to certify them.