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Print Vol. 104, Issue 7

Note

Incarceration or E-Carceration: California SB 10 Bail Reform and the Potential Pitfalls for Pretrial Detainees

Ashley Mullen

15 Nov 2019

On April 23, 2017, Kenneth Humphrey followed an elderly man into his home and demanded money—he left with seven dollars and a bottle of cologne.1In re Humphrey, 228 Cal. Rptr. 3d 513, 518 (Cal. Ct. App. 2018). A few days later, Humphrey was arrested and a court ordered that he be held on $350,000 bail.2Id. at 519, 522. However, Humphrey’s robbery netted him a total of five dollars—he did not have enough money to post $350,000 bail.3Id. at 522. He was an elderly African American man with a criminal record and a history of drug addiction.4See id. at 520 While these traits disadvantaged him in the eyes of the criminal justice system, Humphrey also had one trait that would ultimately determine his sentence: he was poor.

When Humphrey’s case eventually came before the California Court of Appeal, the court declared California’s money-bail system unconstitutional for penalizing the poor.5Id. at 530. The widely publicized nature of the case prompted the California legislature to react. On August 28, 2018, the legislature signed the California Money Bail Reform Act of 2017 (also known as “SB 10”) into law.6Thomas Fuller, California Is the First State to Scrap Cash Bail, N.Y. TIMES (Aug. 28, 2018), https://www.nytimes.com/2018/08/28/us/california-cash-bail.html [https://perma.cc/88GA-WEN2]. As the first piece of legislation to completely abolish monetary bail,7Id. California’s SB 10 is an unprecedented step forward in the struggle for bail reform, eliminating a bail system that puts an unfair “tax on poor people in California.”8In 1979, the Governor of California declared in his State of the State Address that it was necessary for the Legislature to reform the bail system, which he said constituted an unfair “tax on poor people in California. Thousands and thousands of people languish in the jails of this state even though they have been convicted of no crime. Their only crime is that they cannot make the bail that our present law requires.” Governor Edmund G. Brown Jr., State of the State Address (Jan. 16, 1979). However, the Legislature did not respond. See In re Humphrey, 228 Cal. Rptr. 3d at 516. However, progressive movements for change often result in fierce counter-movements, and California’s bail reform move- ment will be no different.9See Fuller, supra note 6.

This Note addresses the arguments that will likely be raised against SB 10 and provides a response to these challenges. Part I discusses the historical background of monetary bail, the bail reform movement in both the federal and state forums, and the beginning of the current bail reform movement in California. Part II addresses the main legal and policy challenges against SB 10, showing how the greatest threats to SB 10 come from policy challenges, rather than legal challenges. Part III looks at the big picture, discussing the pitfalls of pre- trial incarceration and the possibility that SB 10 could create a regime of e-carceration.

References

↑ 1. In re Humphrey, 228 Cal. Rptr. 3d 513, 518 (Cal. Ct. App. 2018).
↑ 2. Id. at 519, 522.
↑ 3. Id. at 522.
↑ 4. See id. at 520
↑ 5. Id. at 530.
↑ 6. Thomas Fuller, California Is the First State to Scrap Cash Bail, N.Y. TIMES (Aug. 28, 2018), https://www.nytimes.com/2018/08/28/us/california-cash-bail.html [https://perma.cc/88GA-WEN2].
↑ 7. Id.
↑ 8. In 1979, the Governor of California declared in his State of the State Address that it was necessary for the Legislature to reform the bail system, which he said constituted an unfair “tax on poor people in California. Thousands and thousands of people languish in the jails of this state even though they have been convicted of no crime. Their only crime is that they cannot make the bail that our present law requires.” Governor Edmund G. Brown Jr., State of the State Address (Jan. 16, 1979). However, the Legislature did not respond. See In re Humphrey, 228 Cal. Rptr. 3d at 516.
↑ 9. See Fuller, supra note 6.

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