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The UCLA Criminal Justice Law Review (CJLR) is an annual journal that focuses on current topics in criminal law, policy, and practice.

UCLA Criminal Justice Law Review

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Moving Away from Hysteria in the California Bail Debate: The Need for Data and a State Constitutional Amendment

A national movement to change bail and pretrial detention is underway.[1] In California, bail reform advocates have attempted to pass Senate Bill 10 which would radically alter the state’s trial court administration of bail.[2] Advocates claim that reform is necessary because detention rates are too high and that the current bail system unfairly penalizes the poor.  Although the effort failed to pass last year, it regained strength after the Judicial Council and Governor Brown endorsed the concept of bail reform.[3]

The bail reform debate took a radical turn in a recent decision made by the California Court of Appeals.  In In Re Humphrey, the San Francisco Public Defender’s Office filed a writ of habeas corpus, arguing that judges in California violated a defendant’s due process rights by failing to inquire about a defendant’s ability to post bail and whether there could be less restrictive conditions of release.[4] Representing a stark departure from legal precedent, the Court of Appeals and the California Attorney General agreed with the defense’s argument that judges are required to make these inquiries.[5]

In light of these changes, this Article argues that: (1) detention rates are not nearly as high as reformers portray, and specifically in Los Angeles County, those held in jail are the very defendants we want, and are constitutionally required, to detain; (2) bail reform advocates have unscrupulously used Humphrey to exploit the public’s fear that indigent defendants are unfairly placed in custody for minor crimes; and (3) the California Court of Appeals and the California Attorney General undermined the state’s constitutional public safety protection provisions by ignoring legal precedent and finding that the current bail system violated due process.

[1].        Jurisdictions including, New Mexico, Kentucky, New Jersey, and Washington, D.C., have all adopted or considered measures to end money bail.  See, e.g., Jon Schuppe, POST BAIL, NBC News (Aug 22, 2017), https://www.nbcnews.com/specials/bail-reform [https://perma.cc/BN85-FGWE].

[2].        S.B. 10, 2017–2018 Leg., Reg. Sess. (Cal. 2017). (Reference made to S.B. 10 in this Article refer to the original draft of the legislation.  Since the writing of this Article, an amended version of S.B. 10 was passed by the legislature and signed into law by Governor Brown.  This Article does not refer or reflect any views as to the amended version of S.B. 10.)

[3].        Governor Brown, Chief Justice Cantil-Sakauye, Senator Hertzberg and Assemblymember Bonta Commit to Work Together on Reforms to California’s Bail System (Aug. 25, 2017), https://newsroom.courts.ca.gov/news/chief-justice-issues-statement-on-bail-reform [https://perma.cc/BR5H-5BTR].

[4].        In re Humphrey, 228 Cal. Rptr. 3d 513 (Ct. App. 2018).

[5].        Id. at 518.