California Proposition 25: Should Cash Bail Be Replaced with Risk Assessment Tools?

The right to a pretrial bail is so old that it predates the Magna Carta. It is a right that is also protected in the United States Constitution under the Due Process clause (United States v. Salerno, 1987). This upcoming November, the state of California is voting on Proposition 25 in the hopes of doing away with cash bail. Back in 2018, the California legislature passed legislation on replacing cash bail with an algorithm-based risk assessment to determine whether the suspect is a flight risk enough to be incarcerated pretrial. This assessment would result in certain monitoring conditions throughout the trial. Unsurprisingly, the bail industry filed a veto referendum to dispute SB 10. If Proposition 25 passes, then cash bail will be a thing in the past. Here's what I am wondering: if pretrial bail has been such an enshrined right historically, why take issue with it? 

The purpose of cash bail is to provide an incentive for those who are released pretrial to appear for their court dates. For those in favor of Proposition 25, there is the criticism that the cash bail system does not judge an individual based on an actual flight risk. Those who fare better in the cash bail system are those who are wealthier. Most who are wealthy can afford bail with little to no impediment. As for those who are poorer, they are forced to pay a disproportionately large amount of cash to work and be with their family as they await trail, regardless of whether they are minimal flight risk. On top of that, it entails giving the bail companies a nonrefundable premium worth 10 percent of the bail (e.g., a $50,000 bail means losing out on $5,000). For those who cannot afford to pay, they stay in jail. Not only are they deprived of working in while awaiting trial, but those who are stuck in jail are often forced to accept harsher plea deals than those who can fight the charges unincarcerated (Donnelly, 2018).

This brings us to the cost of the California bail system. As of 2014, 62 percent of prison beds (or about 50,000 beds) in California were filled with those awaiting trial, according to the Public Policy Institute of California [PPIC]. A Human Rights Watch report uses an estimate that the daily cost per prisoner is $113.87. Assuming that cost is accurate, that would mean the daily cost of imprisoning unsentenced individuals is about $5.7 million daily (or $2.09 billion annually). If we use the daily cost nationwide of $77.67 found in a December 2018 report from the centrist Brookings Institution, that would still mean an annual cost of $1.4 billion. These calculations would assume, of course, that all the unsentenced individuals would not be incarcerated. The high-bound assumption could be why the California Legislative Analyst Office [LAO] estimated that the reduction in local jail costs would be in the high tens of millions, instead of a higher amount.

This leads to the trade-off of replacing it with a risk assessment system. The aforementioned LAO fiscal impact report estimated that a new system under Prop 25 would cost in the mid-hundreds of millions of dollars, implying that the net cost could be higher under Prop 25. The fact that the LAO does not put a dollar amount on it makes it more difficult to determine net cost. The PPIC had a similar issue of putting a price tag on Prop 25 this past August.

Many Left-leaning individuals have been for Prop 25. However, there are some on the Left (and not just the American Bail Association) that believe that Prop 25 will make matters worse. The Essie Justice Group believes that it will have an even larger, disproportionate effect on minority communities. This seems to have been the case when the state of Kentucky removed its cash bail system (Albright, 2019). New Jersey had mixed results. On the one hand, pretrial imprisonments dropped by 27 percent since it removed cash bail in 2017. On the other hand, racial disparities did not budge. The ACLU of New York released a policy brief this year on how risk assessment tools perpetuate socio-economic and racial disparities. A group of researchers, including those from Harvard and MIT, signed a letter in 2019 saying that these tools do not reduce racial disparities. 

The fact that the cash bail system de facto punishes many by throwing hundreds in jail before being tried, many of whom are low-risk, non-violent offenders, makes the idea of "innocent until proven guilty" a cruel joke or something that only applies to those who can afford it. Bail reform is needed. At the same time, one could argue that risk assessment tools perpetuate past biases of the criminal justice system. While there are issues with both the current cash bail system and risk assessment tools, I think I have a slight preference for Prop 25. I like how the Brennan Center for Justice concludes: If California votes "no," they should go back to the drawing board, get rid of cash bail, and avoid risk assessment tools. If California votes "yes," we should monitor the implementation of risk assessment tools to make sure disparities are not being perpetuated in the criminal justice system. 

2020 State Ballot Hodgepodge: Florida Minimum Wage, Illinois Income Tax Reform, California Gig Economy, and Marijuana Legalization

One of the things I enjoy most about election season is not the presidential election hullabaloo or even when you have Supreme Court justice vacancies. I personally get a kick out of the state ballot measures voted on in November. They are voluminous, they cover a wide range of topics, and they have greater impact on our lives than we can anticipate. Some of the fun ones I have covered in past years have included  single-payer healthcare, condom use in the porn industry, the right to hunt, and labels for genetically modified food. Today, I will cover minimum wage, tax reform, labor market reform, and marijuana. 

Florida Minimum Wage: Florida is looking to increase its minimum wage to $15 per hour by September 2026 (Amendment 2). The legislative branch's research arm, the Florida Office of Economic and Demographic Research (EDR) conducted a fiscal analysis of the ballot initiative. The EDR found that by 2027, it would cost the state of Florida $540 million per annum. Proponents argue that Florida needs to increase the minimum wage to account for rising costs in housing and transportation. Aside from contributing to the broader economy, the additional spending would offset the unemployment losses. 

The Congressional Budget Office (CBO) released a study on what a $15 federal minimum wage would look like. CBO found that while 1.3 million would be pulled out of poverty, the same amount of people would become unemployed. That on top of the fact that it would have a net cost of $8.1 billion. Not exactly an economic booster! Data from the last recession also found that minimum wage increases prolong recessions. Not exactly a winning policy if one of the main goals is to pull Florida out of the recession. Generally speaking, minimum wage increases such as these make it more difficult for low-skill labor to find or retain work, it is a poorly targeted policy when it comes to poverty reduction, and adversely impacts business operations. If you live in Florida, vote "No" on Amendment 2. For further analysis on Amendment 2, see the Reason Foundation's analysis here. 

Illinois "Fair" Tax: The main ballot initiative in Illinois this November is for what has been colloquially referred to as a "fair" tax. Essentially, Illinois is looking to switch its income tax from a flat tax (everyone pays the same percentage) to a graduated tax system (the richer you are, the higher percentage you pay). I covered the Illinois "fair" tax last year, but the proposed brackets are the same, so the analysis still applies. Aside from asking what constitutes as "fair when it comes to taxation, I took issue with the following:

• The tax will not close the budgeting gap.
• The tax reform does nothing to change Illinois' atrocious spending habits.
• The "fair" tax does not adequately address the issues of fairness that proponents purport.
• Illinois already has lousy tax competitiveness. Switching to a graduated tax system will simply incentivize more people to move outside of Illinois. 

Illinoisans should vote "no" on the "Illinois Allow for Graduated Income Tax Amendment." If you want more recent analysis on the ballot initiative, here is one from the Tax Foundation.

California Gig Economy: Last year, the California legislature passed Assembly Bill (AB) 5, which applied a three-factor test to determine whether a worker could be classified as an independent contractor under California law. AB 5 had considerable implications for gig workers, but especially app-based drivers (e.g., Uber, Lyft). If it passes this November, Proposition 22 would essentially reverse AB 5. I covered AB 5 last year shortly before it became law this past January. I thought AB 5 was inferior policy because a) it would cause greater unemployment, b) cost the California economy millions, c) increase costs for consumers, and d) eliminate the flexibility in hours that most app-based drivers prefer to the 9-5 work hour. 

Looking at the analysis by the California Legislative Analyst, it would create a minor boost in income tax revenue because drivers would be earning more in income. More to the point, passing Proposition 22 would "would allow the companies to charge lower fares and delivery fees. With lower prices, customers would take more rides and place more orders. This could increase the companies' profits. High profit would increase the companies' stock prices." This analysis points out that AB 5 has been hurting app-based drivers, customers, and companies that hire gig workers alike. In case you need more convincing, here are analyses from Reason Foundation and the American Action Forum. I urge Californians to vote "Yes" on Proposition 22 this November. 

Marijuana Legalization: This November, we have four states looking to legalize recreational marijuana - Arizona, Montana, New Jersey, and South Dakota. Reason Foundation provides analysis on each of these ballot initiatives. There is a reason states have been trending towards legalizing marijuana in recent years. It is because the fears and stigma surrounding marijuana have been overblown, to say the least. Colorado legalized in 2014, and it has not been anywhere near the disaster that naysayers thought it would be. Economically speaking, marijuana legalization makes sense. We're not spending millions to enforce laws (that includes policing, prosecuting, and imprisonment costs), which means we can focus on more serious crimes. There is more government revenue, which means that if government dollars can be spent, it could spent where it could do more good, instead of punishing a victimless crime. Also, we can reduce the size of the underground market. This is great not simply because it expands the legal economy, but because less commerce in the underground market gives criminals and drug lords less power. Let's continue the trend towards marijuana legalization by voting these ballots and making them the law of the land for these states. 

A Sukkot Lesson on Schach and Being Comfortable with the Uncomfortable

For a Jew, it's the most wonderful time of the year. Jews have four holidays crammed into a single month. We are currently in the middle of Sukkot (סכות). Also known as "the Festival of Tabernacles," Sukkot acts as a harvest festival. A major component of Sukkot is building a temporary dwelling called a sukkah (סוכה). As I looked up through the roof of the sukkah this year, I started to focus on the roof covering of the sukkah, referred to as schach (סכך). 

I started to think of some of the technicalities about what makes for valid schach under Jewish law. Two important details have to do with what the schach is made of (Kitzur Shulchan Aruch 134:3). It has to grow from the earth (גדולו מן הארץ) and it has do no longer be attached to the earth (תלוש). On the one hand, it is material made of this earth, implying there was nurturing and growth that was involved in the creation of the schach. At the same time, it is no longer attached to the earth. It has been uprooted from the conditions that once allowed for it to grow. 

Another important detail is that there has to be enough schach to provide more shade than sun (Kitzur Shulchan Aruch 134:5). What is interesting is that we are not completely covered under a sukkah. We need enough openings to have the sunlight come through the roof and enough where we can see the stars. Yes, we are supposed to receive some coverage, but we still leave enough openings to be exposed to nature, to the elements. 

You would think that these would only be details that a carpenter or architect would give particular meaning. I would normally find a fixation with such details as material type of the schach to be reflective of the obsession in the Orthodox world over legal minutiae that seemingly have no bearing on a spiritual experience. And this year, I was able to find spiritual meaning in them. 

I have been reading the book How to Be Comfortable with Being Uncomfortable by Ben Aldridge. Aldridge talks about his journey, which includes the exploration of Stoicism, Buddhism, and cognitive-based therapy. By discussing these approaches, Aldridge describes how he came to terms with his fears and anxieties by leaning into them. As the title suggests, he developed the mental resistance to become comfortable with the uncomfortable. 

I think the schach has a similar lesson to teach, especially if the sukkah is meant to act a metaphor for joyful living. We grow up only to have life thrust less-than-ideal situations upon us. We are uprooted from the things that make us feel comfortable: that is an inevitability in life that I discussed this past Tisha B'Av. I think this feeling has been quite notable during the pandemic. Pre-pandemic, so many people went to work and went about their day-to-day in an automatic fashion, thinking that nothing could shake their sense of stability or security. And then we got hit with the worst pandemic since the Spanish Flu, the greatest economic downturn since the Great Depression, and social unrest in the United States that has not been since the late 1960s. The uprootedness, the disorientation, things not going as we expect: this is all a part of life experience. 

If the amount of schach teaches us anything, it is that we are not meant to be sheltered from the elements. We are meant to accept the elements as part of the process. As a dear friend of mine brought up, the sunlight comes in through the cracks. Even as we protect ourselves from the elements, we have to remind ourselves vis-à-vis gratitude that there is good in our lives. 

What about when the elements get to be too much? I wrote a piece two years ago about the exemption of sitting in the sukkah when weather conditions are uncomfortable and what we could learn about adapting to bad situations. It seems contradictory that I would now write that we need to be comfortable with the uncomfortable. But if we sift through some of the details, it really is not contradictory. 

One of the interesting points about the exemption is that it is based on a subjective definition of discomfort. If we learn to become comfortable with the uncomfortable, it would not bother us as much. It means we would have a higher resilience to deal with cold weather or rain if it comes on Sukkot. 

It is also worth noting that the sukkah pushes us in multiple ways. The temporary nature of the sukkah reminds us that our lives are also temporary. We have to find joy even while knowing that we will all die one day. Many have argued over the centuries that money buys happiness. Although it might seem intuitive for that to be the case, we are meant to find spiritual joy in material simplicity. We also have to find comfort and joy in nature when we could readily enjoy the comforts of modern-day life. The fact that Sukkot does not commemorate a specific event implies that we have to push ourselves to find meaning to a situation when one is not immediately apparent.

Yes, there will be certain scenarios in which we cannot avoid going indoors for Sukkot, such as when a hurricane, whether literal or metaphorical, abruptly comes in our lives. We cannot weather everything. We are human and thus limited by our imperfections. However, if we could learn to weather a slightly colder wind or a temporary storm, it gives us more opportunities to experience a mitzvah, to experience something we otherwise would not have. If you can enjoy eating in a sukkah, saying brachot (blessings), and singing zemirot (holiday songs) regardless of what life, G-d, or Mother Nature throw at you, I would argue that is equanimity. Stoic philosopher Epictetus once said that it is not so much the external events that cause distress, but how we respond to them. If we learn to better respond to the external events, we would have fewer scenarios in which we would feel the need to go inside during Sukkot. Life is not about the comfort zone. It is about moving beyond it to grow, much like Abraham did when he left his hometown at the age of 75. Interestingly enough, the Torah does not mention anything in Abraham's life prior to him pushing himself outside of his comfort zone. To quote American author Neale Donald Walsch, "Life begins at the end of your comfort zone."

What I leave you with are some questions to think about: What makes us uncomfortable? How does the discomfort impede us in life? How do we learn how to build our resilience? How do we learn to become comfortable with the uncomfortable so we experience life more fully instead of missing out on the vast number of opportunities that life has to offer? 

מועדים לשמחה!