It is not a crime to be poor in the United States. Therefore, lengthy pretrial incarceration of individuals charged with, but not convicted of, a crime is a violation of their Constitutional rights. When a poor person can’t afford to pay their bond so they can be released from jail pending trial, but a rich person can, the inequity of such a pretrial bail system is obvious, at least to fair and conscientious Americans. But for hundreds of years, this antiquated system has violated the Constitutional rights of the poor, primarily people of color.
Under the previous bail system in California, when a bond is set beyond the means of an accused, but not convicted, inmate they will remain incarcerated until their trial date, which in some cases may be years or, at least, several months away.
To be incarcerated without a conviction for a lengthy period is a clear violation of the 5th and 14th Amendments of the United States Constitution, which state as follows:
5th Amendment “No person should be deprived of life, liberty, or property by the federal government without due process of law.
14th Amendment Nor shall any state deprive any person of life, liberty, or property without due process of law.
Those opposing the past bail laws maintained that poor defendants were denied due process when unfairly incarcerated before trial and possible conviction simply because they couldn’t afford to bail out and that stipulation creates unequal justice based on wealth. Astonishingly, two-thirds of current California inmates were those awaiting trial. In effect, those inmates were being denied due process, and their 5th and 14th Amendment’s Constitutional rights were being egregiously violated.
In response to those Constitutional violations and the obvious inequities in the justice system for those incarcerated pretrial, on August 21, 2018, California abolished bail as a condition of pretrial release. For many, the passage of the California Bail Reform Act SB10, which takes effect October 2019, is an improvement over the old system.
While this measure, signed into law by Governor Jerry Brown, places California ahead of most other states in our country toward eliminating the justice system’s economic and racial biases, it doesn’t fully solve the problem of violating inmates’ Constitutional rights or the inequity of pretrial release conditions.
However, Governor Brown said after signing bill Senate Bill 10 “Today, California reforms its bail system so that rich and poor alike are treated fairly.”
Not all agree, including the Human Rights Watch coalition, for years a national advocator of bail reform. In response to SB10’s proposed legislation, they opposed this bill because while inability to pay bail will not keep a poor inmate incarcerated, it leaves pretrial release to the discretion of judges who will determine suitability and conditions of release. Many who opposed this bill fear leaving pretrial release up to judges who may arbitrarily decide who should be released is a serious concern.
For instance, if an elected judge is deciding whether they should release a defendant prior to trial who is accused of a crime, that judge may be concerned that the defendant could re-offend during pretrial release and affect their re-election.
SB10 allows judges to order people accused, but not convicted and presumed innocent, of nearly unlimited discretion to be held in jail with no recourse until their trial date.
The Human Rights Watch published a report in 2017 entitled “Not In It for Justice: How California’s Pretrial Detention and Bail System Unfairly Punishes Poor People,” detailing how the existing bail system violates fairness and human rights. According to a Human Rights Watch spokesperson, the new SB10 bill is not bail reform and replaces “one harmful system with another.”
The coalition’s argument is compelling. For many who supported the bill, its arbitrary pretrial release conditions may have been misunderstood, and its implications may be even more disturbing and unfair than the previous bail bond laws.
In a notable California Court of Appeals case, In re Humphrey, the practice of using unattainable bail to keep an accused detained was condemned. This case determined that this practice was unlawful and discriminatory, ordered judges to end it.
A Human Rights Watch spokesperson said, “While the original version of SB10 stated an intent to ‘safely reduce the number of people detained pretrial, while addressing racial and economic disparities in the pretrial system,’ the rewritten bill says that its intent is to ‘permit preventive detention of pretrial defendants.’ The bill then sets up a system that allows judges nearly unlimited discretion to order people accused of crimes, but not convicted and presumptively innocent, to be held in jail with no recourse until their case is resolved.”
Therefore, opponents of SB10 believe it will “massively increase preventive detention, not lower pretrial incarceration rates.”
Effective October 2019, SB10 can make it even more difficult for unconvicted inmates, presumed by our Constitution to be innocent until proven guilty in a court of law, to be released from jail pending trial.
Any time unjustly spent in jail is too long and being left to languish for months or even years until a trial is held is unconscionable.
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