The story behind a landmark cash bail ruling in California
Posted May 2021
Civil rights lawyer Alec Karakatsanis talks about the recent California Supreme Court decision to strike down cash bail in the state, and what it means for the future of bail reform.
The criminal justice system in America is broken. More than two million people are incarcerated in the U.S., which has the highest prison population in the world. One of the major barriers for those incarcerated is the cash bail system, which ties a defendant’s freedom to their ability to pay a fee set by the court, regardless of their means to pay it.
But a recent California ruling offers an important step forward in comprehensive reform of the cash bail system. Alec Karakatsanis, an Emerson Collective Dial Fellow and founder of Civil Rights Corps, worked with the San Francisco Public Defender’s Office and the law firm WilmerHale to successfully plead the March 2021 Re: Kenneth Humphrey case.
In 2017, Humphrey had been arrested and detained on a $600,000 bail amount, which was subsequently lowered to $350,000, after he was accused of following another resident of his senior living home into his room, and stealing $5 and a bottle of cologne. The California Supreme Court unanimously ruled in the Humphrey case that the cash bail requirement in most cases is unconstitutional because it violates due process and equal protection rights of defendants, and that California courts must consider all non-monetary alternatives to cash bail.
Practically, the ruling means that many of the 82,000 people awaiting trial in California’s jails could seek to have their release conditions reviewed using the parameters of the Humphrey ruling, which evaluate whether someone poses a danger to their community. For many, it could mean reduced bond or even release.
“Decisions like this mean that if the government ever wants to do this to a person–take them away from their parents and their children and their loved ones and everything that we all take for granted about life–it has to have extremely good reasons,” Karakatsanis says.
We asked Karakatsanis to recount the journey to the recent ruling–and explain what it could mean for the future of cash bail in America’s criminal justice system.
Let’s start with the basics. Help us understand the bail system and what it was intended to do, versus what it actually does.
The bail system originated even before the Magna Carta, and it was intended as a mechanism for actually protecting people from government abuse and overreach. Bail actually means “conditional release,” and it was a tool to prevent the King of England from detaining people, so that you could not be put in a dungeon before you were proven guilty beyond a reasonable doubt. It was like a surety that you or your family would promise to pay something if you didn’t show up to court. With the rise of commerce and the ability to travel more easily, there ended up being a problem of guaranteeing this surety. So a for-profit industry developed–what we know as the bail bond industry–to be your surety, for a price. Gradually, the system morphed into what we now think of as the bail system.
There is a novel legal theory–involving equal protection and due process–behind your cash bail work, and in your arguments in the Humphrey case. What led to that legal perspective?
We actually came to focus on this issue through our debtors’ prison work—specifically our work in Ferguson, Missouri after the murder of Michael Brown and in Alabama, Mississippi, and Louisiana around our work with people being jailed because they couldn't pay tickets police gave them.
Those cases weren't about bail. They were about the injustice associated with being put in a cage just because you can't make a monetary payment. Those cases were about what we call “equal protection” and “due process”–the idea that it's fundamentally unfair to put someone in a jail cell for something they can't control like their poverty. And that it's fundamentally unjust and unequal to put someone in a cage when someone in the exact same situation wouldn't be in a cage just because they have money. Those are the two concepts that have really not been applied to the bail system in a generation, at least since the rise of mass incarceration.
When we started talking about challenging the money bail system under these theories, a lot of people were very skeptical. People working in a bureaucracy get used to doing what they do, and they couldn’t see how unfair and how devastating the policies they enforced are to the poor and to people of color and their families.
How has your work been affected by California’s recent attempts at bail reform, such as Proposition 25, which sought to replace the current bail system with expanded pretrial supervision, including electronic monitoring?
We were strong opponents of Proposition 25–and also strongly against SB10, which would have eliminated the money bail system. Like many reforms, the people who created them are the ones who are still in power and are trying to decide what replaces these systems of oppression, rather than eliminating them. They’re interested in maintaining high rates of pretrial human caging and control.
Right now, we've got a multibillion-dollar, for-profit money bail industry. These attempts at bail reform in California did what we're seeing all over the country with a lot of the bail bond companies, private prison companies, and prison telecom companies. These groups see the writing on the walls–that the money bail system is vulnerable. But they also know there's a tremendous amount of money to be made, and so what they're doing is shifting their business models. Instead of being the companies that sell you a bail bond, they want you to be released pretrial, and be the companies that sell you electronic monitoring devices–what Michelle Alexander calls “e-carceration.”
We can’t simply reproduce and reconstruct entire bureaucracies to target the same populations, make the same profit off of them, and control them through the criminal system in the exact same way.
Was there something about Kenneth Humphrey’s case that made you believe this could be the one to move the needle?
Kenneth himself is a very special person. He was told at every step of the way that he was too dangerous to be released, and that he was a symbol of all that was wrong with the bail reform movement.
On the other hand, we know from all of the evidence that almost everyone charged with crimes in this country is at an extremely low risk of committing a new crime while out on release. We also know that jailing people prior to trial makes people more likely to commit crime in the future because it destabilizes them and takes them away from their loved ones, their treatment for their mental illness or their addiction, their safe housing, and the participation in programs that can actually help them better their lives.
Once the state’s high court ruled in Kenneth’s favor, the trial court released him and he proved everyone wrong. It's been over three years. He's been thriving with his partner and living a life that's full of joy. He's also gotten involved in a lot of the activism around bail reform. He is a perfect example of why it's such a wrong-headed and reactionary assertion that because someone is accused of doing something serious, they should be thrown in a cage at enormous cost to themselves, taxpayers, and others in society.
Do you think this past year of renewed calls and demonstrations for racial and social justice has had an impact on this movement?
I think that the uprisings in the wake of the murders of George Floyd and Breonna Taylor, and so many other human beings, have totally expanded people's consciousnesses and changed the idea of what's possible. It has fundamentally altered a whole new generation’s thinking about what the police are, what they are doing, and whose interests they are really serving.
Fundamental redesign of the legal system is long overdue. We have a system that for many decades has been using rhetoric about public safety to mask the fact that our society is incredibly unequal. People are incredibly unsafe for many reasons that our society is not addressing–whether it’s lead in children’s water, or the inability to access healthcare, or the lack of adequate access to mental health treatment and drug addiction treatment. These are very serious public health issues.
Yet those who lead our society have used this concept of crime and criminality–of police and prisons–to paper over their inability to confront those other issues. I think we’ve seen a tremendous opening in the last nine months or so to elevate these discussions, and I'm very excited to be a part of this work.