Earlier this year, the California Legislature passed SB-10, a bill that will, beginning in October of 2019, eliminate cash bail in favor of a system purporting to detain people according to their risk of re-offense or fleeing from trial.
The abuses of the cash bail system are well known. Bail amounts are set without regard to the actual risk an accused person presents, poor people often are unable to raise even the required 10%, that same 10%, as it is non-refundable, can often tip a poor family into a downward spiral, excessive pre-trial detention is used buy prosecutors as a cudgel to get guilty pleas, and so much more. The overall effect of the cash bail system is also highly racially discriminatory, with proportionally far many more people of color detained before trial than white folks. However, there is always a way to make a bad situation worse.
SB-10 began as an honest attempt to address these problems, and replace them with a more just system. However, massive revisions were made to SB-10 a mere three days before passage. These revisions caused many organizations, including the ACLU and the California Attorneys for Criminal Justice to withdraw their support for the bill, citing its potential to vastly increase pre-trial detention in California. (The Criminal Justice Committee has analyzed SB-10, and prepared a diagram of the process it envisions.)
In 2017, Christopher White was standing by his truck in Encinitas when his friend Jeremy Owens assaulted a local woman, grabbing her by the neck and beginning to pull her to the truck. By his own account, he yelled at Owens to stop. Owens stopped, and as the girl fled, Mr White yelled “Go in the house!” His friend got in the truck, and the two men drove away.
Over that weekend, Mr White tried to convince Owens to turn himself in, and discussed with other friends Owens’ need for counseling.
The San Diego County DA’s Office charged White with attempted rape and kidnapping. He was denied bail, on the grounds that he was a danger to society. He was also offered a plea deal which included three years of unsupervised probation.
In Re White
A member of our Branch’s Criminal Justice Committee recently attended a meeting at the League of Women Voters, and got a chance to discuss White’s case (called “In Re White”; text of brief here) with his defense attorney, Laura Schaefer.
Schaefer explained that California is actually in a bit of a confusion around bail. Cash bail (non-excessive cash bail) has been a right of California citizens under Section 12 of the California Constitution since before the turn of the last Century. However, in the ecstasy of punitive spirit so common after the Civil Rights movement (and so often used to subvert the gains of that movement), multiple ballot initiatives weakened the right to release under Section 12. Parts of the first measure were found in conflict with Section 12, but others were allowed to stand, and then the whole thing was relied on in another amendment, and SB-10’s vast apparatus of pre-trial detention is the latest bill to build upon this foundation.
Schaefer’s argument consists of two major points:
- Denying White’s bail was prosecutorial overreach and nonsensical on its face, as the DA’s Office simultaneously argued that White was too dangerous to be release before trial, but offered him a deal recognizing that he was not dangerous enough to even warrant supervision if he plead guilty.
- The initiatives that weakened Section 12 did so implicitly only, and the only correct way to amend section 12 is to do so explicitly. Therefore, Section 12 still should apply in full.
If Schaefer were to win her case, those portions of SB-10 that build upon the ballot initiatives (namely, the pre-trial detention provisions, NOT the release-without-bail provisions) would be void, and cash bail would continue in California past October 2019.
There is a companion case to In Re White, called Humphrey, that specifically addresses excessive bail as unconstitutional under Section 12. It could also invalidate much of SB-10.
Arguments are ongoing before the California Supreme Court.
Interested in Criminal Justice?
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