California Supreme Court must decide fate of state’s unjust money bail system
In the coming months, the California Supreme Court will decide one of the United States’ most important cases in recent history in terms of racial justice and mass incarceration. At issue is California’s money bail system and the question of who has a right to pretrial liberty under the California Constitution.
The California Supreme Court’s ruling will determine whether the state continues to separate hundreds of thousands of people from their families in jail cells every year as those people await trial based solely on their ability to pay bail. The stakes are especially significant for people of color, who are disproportionately detained in California’s overcrowded jails and disproportionately unable to obtain the cash necessary to return to their families. The outcome will also set the tone for how state courts handle similar issues across the country, where over 500,000 people are confined to jail cells on any given night awaiting trial.
This particular case started with the arrest of Kenneth Humphrey, a 67-year-old man accused of robbery for taking a bottle of cologne and $7 from another resident of a home for the elderly where he was living. Mr. Humphrey was jailed for months because he could not pay a $350,000 money bail amount. In 2018, the Court of Appeal ruled unanimously in Mr. Humphrey’s case that a person cannot be jailed solely because he is poor, and that if the government seeks to detain someone, it must demonstrate that detention is necessary.
The California Supreme Court granted review in the case, hopefully to address systemic issues that have plagued California’s courts for years. At issue are the constitutional rules governing the bail system in a state that arrests more than 1 million people every year. (Mr. Humphrey himself was released from jail and has done very well on pretrial release for more than two years.)
The upcoming bail case also raises a question the rest of the country will need to grapple with: Assuming courts can no longer jail people solely because they are poor, which offenses are serious enough to justify giving the government the power to jail a presumptively innocent person prior to trial?
California, like most states, has enshrined the right to pretrial liberty since the adoption of its original constitution in 1849. In 1982, voters approved a constitutional amendment that curtailed that right and permitted the state to consider detention of presumptively innocent people prior to trial if there was strong evidence that the person was guilty of one of three things: a capital crime, a violent or sexual felony or any felony where they have threatened someone. The voters thus overwhelmingly preserved the longstanding right to bail before conviction in most cases, but gave the courts authority to detain a person in serious cases if that person poses a danger to the community.
But with the rise of mass incarceration in the last 40 years, and the concomitant rise in power of the multi-billion dollar for-profit money bail industry, this constitutional provision has been essentially ignored in the California court system. Each year, hundreds of thousands of people charged only with misdemeanors and less serious felonies are detained anyway even though the law forbids it. How? By not calling it detention. Instead, courts “release” them with money bail, but they stay in jail because they can’t pay it.
California Attorney General Xavier Becerra’s office, while supporting the end of money bail, has made an astounding argument to the court. It says that the section of the California Constitution limiting pretrial detention to the three categories of serious felony cases essentially no longer exists. The attorney general argues that this constitutional provision has been silently erased and anyone can be detained in any case in the discretion of the courts.
Law professors, civil rights activists and other experts call the California attorney general’s argument outrageous. Important constitutional rights don’t just disappear. More important, the reason the constitutional right was enshrined is that it is too important to leave to the discretion of individual courts — the same courts that have been jailing hundreds of thousands of people each year in less serious cases solely because they could not pay money bail.
The simple reality is that constitutional provisions that restrict pretrial detention to only the most serious crimes are inconsistent with an entrenched practice of detaining poor people in a much wider variety of cases because they cannot pay money bail. The California Supreme Court’s task must be not only to end the unjust and ineffective practices of the current system, but to ensure that we do not replace it with systems that put different labels on the same forms of injustice.