Thread by @equalityAlec

THREAD. One year ago today, I argued the case of Kenneth Humphrey in the California Supreme Court. The case struck down the cash bail system as we know it in California. But the case is more important for what the court did NOT do, and more people should know about THAT.

Kenneth Humphrey was accused of robbing a few dollars and a bottle of cologne from another man at the senior living facility they both lived in. As he awaited his day in court, he was initially kept in a cage because he couldn’t pay $600,000. He decided to appeal.

Then something amazing happened: the Court of Appeal issued a unanimous opinion striking down California’s ubiquitous money bail practices. Kenneth got a new bail hearing, and he was released and did great. A beautiful photo essay by @svdebug

https://twitter.com/svdebug/status/1088865677111222272

One of the things the Court said was very important: if you require an amount of cash a person can’t pay to release them, what you’re actually doing is ordering them to be jailed. Asking Kenneth to pay $600,000 to get out was like telling him he must run a 1-minute mile.

The Court said that, detention of presumptively innocent people is legal in some circumstances under U.S. Constitution, but government must meet a very high burden to show that there is nothing else that can be done to protect the public. This was when all hell broke loose. Why?

Because CA Constitution goes further than US Constitution. It basically forbids detaining people away from their families before trial unless there is very strong evidence against the person, the person poses a clear danger, and the case is a violent or sexual felony.

But prosecutors and judges and cops knew that they were caging 100,000s of the poorest people in California each year in misdemeanors and felonies that didn't involve any violence even though the California Constitution specifically prohibited it. How is that?

Well, prosecutors and judges did it by a little mental trick: if we require cash for release, we are technically “releasing” the person even though they’ll never get out. This way, we can get around the CA Constitution and jail people even as we say we’re “releasing” them.

Sometimes the things lawyers think are normal are deeply disturbing ways of rationalizing unspeakable brutality. In this case, bureaucrats told people separated from and unable to hug their kids that they were being "released" but would sit in a cage.

Why would they want to do that? One of the dirtiest secrets of the U.S. criminal legal system: the entire thing would collapse if everyone exercised their right to fight their case and to jury trial. Every bureaucrat knows that they need to coerce guilty pleas, and quickly.

And more people plead fast in the horrors of pretrial jail: 500,000 humans separated every night from their kids, jobs, homes, churches, schools, friends, lovers. No fresh air, sunlight, exercise, hugs, basic medical care; rampant sexual and physical assault; infectious disease.

So, DAs across CA freaked out b/c they needed pretrial jail to coerce guilty pleas to keep the punishment bureaucracy churning efficiently in all the lower level cases where people aren't eligible for pretrial detention. The Constitution was incompatible with mass human caging.

So, what happened? The Attorney General of California, a liberal named Xavier Beccera (now a Senator), came up with a stunning argument: the clause of the California Constitution limiting pretrial detention should be ignored. One of the most sacred provisions had just vanished.

Beccera said that, though Californians had had a right to release on bail in most cases since the first Constitution of 1849, this basic right had been “silently repealed” and no longer existed. Any person charged with any crime, no matter how minor, could be caged before trial.

Beccera’s argument was ludicrous. In my 14 years as a lawyer, I’ve never seen a more naked attempt to manipulate courts for an unjust, illegal outcome. No U.S. court has ever held that a major constitutional right has been silently repealed by voters who are not told about it.

You can read some of the briefs in the case here: civilrightscorps.org/wp-content/upl… and an op-ed about it by the Dean of the UC Berkeley Law School here: sacbee.com/opinion/articl…

The California Supreme Court specifically took the case to decide this question. The Court asked us to brief the merits of Beccera’s shocking argument: did a 170-year-old fundamental right just silently vanish?

This question would likely be most significant court decision in U.S. history on the number of people in jail: if CA Constitution forbids jailing people in misdemeanors and non-violent, non-sexual felonies until found guilty, then 100,000s of people would be released each year.

In his dissent in the infamous McCleskey case, Justice Brennan said conservative majority of U.S. Supreme Court feared “too much justice.” Brennan knew one thing: if a case threatened the assembly line bureaucracy, judges could feel pressure to ignore even the clearest rights.

After waiting for years, the Court finally heard the case on January 5, 2021. A few months later it issued a decision. It ruled for Kenneth Humphrey on the U.S. Constitutional question of whether unaffordable cash bail is the same as an order of detention. That’s good.

But the Court ignored the more important California Constitution issue. That fight must continue. Many lives depend on a constitutional right not disappearing, as does the nature of what a Constitution and a legal system mean for the most vulnerable people in our society.

You can follow along our work on this issue across the country and in California @CivRightsCorps at civilrightscorps.org