April 5, 2021

What progressives should realize about California eliminating cash bail.

What progressives should realize about California eliminating cash bail.

This past week, President Joe Biden announced his first slate of federal judicial nominees. The list contained a diverse and seemingly brilliant set of lawyers and judges from all manner of professional backgrounds—in a welcome departure, there are not only former prosecutors and corporate lawyers, but also public defenders and civil rights lawyers. While it’s easy to say that kind of professional diversity matters on the federal bench, it’s not always clear how it might concretely change things. Luckily, just a few days before the list was released, we saw a tangible reminder of why that kind of background matters.

On March 25, the California Supreme Court issued a blockbuster decision invalidating California’s cash bail system as unconstitutional. In the United States, when someone is arrested, their release prior to their criminal trial is often conditioned on whether they can afford to make bail. Those who cannot afford to pay frequently languish in jail for months and even years. This makes the United States one of only two countries in the world in which someone can be jailed for being too poor to pay for their release. These cash bail systems have come under great criticism in the past decade, with courts invalidating cash bail systems in cities like Houston and Dallas, and other states largely doing away with cash bail on their own. (Contrary to critics’ fears, crime has consistently gone down in cities and states that eliminate cash bail.)

But California’s elimination of the practice is a change of an entirely different order. In some ways, this development can be traced back to a U.S. Supreme Court decision from a decade ago that has nothing to do with cash bail but does have something in common with the recent California Supreme Court decision: Leondra Kruger, who now sits on California’s highest court. Ten years ago, Kruger was the acting principal deputy solicitor general of the United States—the top political deputy in the Office of the Solicitor General, arguing cases in the Supreme Court on behalf of the federal government. In 2011, Kruger argued for the United States in Turner v. Rogers, a case about what due process is required before a person can be jailed for failing to pay child support. Michael Turner was appealing his jailing for civil contempt after he failed to pay child support. He argued that he had a federal constitutional right to court-appointed counsel because not only was he unable to afford to pay child support, but he also could not afford to pay a lawyer.

Arguing on behalf of the United States, Kruger asserted that the Constitution required a hearing at which Turner’s ability to pay must be addressed before he could be jailed for failure to pay child support. Before such a hearing, Kruger argued, the parties must be advised that the hearing would cover the subject of their ability to pay; then the court must actually hold that hearing; and, before putting someone in jail, the court must expressly find at the hearing that the person has the ability to pay and has chosen not to do so. Kruger argued that these minimal procedural safeguards were necessary so that courts were not jailing people solely for having insufficient funds to buy their own freedom.

Her arguments worked: That summer, the Supreme Court, in a 5–4 decision, held that the precise procedural safeguards for which Kruger had advocated should be adopted by courts to avoid depriving someone of liberty without due process. In his majority opinion, Justice Stephen Breyer went so far as to cite the pages of oral argument transcript in which Kruger had painstakingly explained what kinds of safeguards were needed and why.

Turner has become an important precedent for lawyers around the country who are fighting cash bail systems. In particular, advocates frequently cite those procedural safeguards advocated by Kruger at argument, and later adopted by the court, and several courts have cited Turner in their decisions striking down cash bail systems.

Kruger now sits on California’s Supreme Court. And last week, she had the chance to affirm, as a jurist, the very same principles she had advocated as a lawyer a decade ago. In In re Kenneth Humphrey, she joined her colleagues in holding that California cannot jail people solely because of their inability to pay; that, instead, “the court must consider the arrestee’s ability to pay the stated amount of bail—and may not effectively detain the arrestee ‘solely because’ the arrestee ‘lacked the resources’ to post bail.” 

Kruger thus provides something of a case study in why the primary architects and advocates of major civil rights reforms are such important additions to the bench. Their aspirations about what the law may someday allow can actually become law—though often only after years of labor. The conservative legal movement doesn’t have a lock on elevating advocates of a specific kind of legal ability directly to the bench, though they are extremely adept at it. Progressives should do this as well.

As a lawyer, Kruger proved herself adept at persuading moderate and conservative judges to rule in favor of progressive outcomes. She did so not only in the Turner case, but in others as well, including persuading the full conservative majority to protect civil rights whistleblowers from retaliation against family members and to extend the timeline for civil rights plaintiffs to bring disparate impact claims (in an opinion penned by Justice Antonin Scalia!). Since she was appointed to the bench, Kruger has been the decisive vote and written the majority opinion in a case overruling prior precedent to bar certain warrantless searches of cars. She’s authored other opinions increasing access to bodycam footage, allowing defendants to withdraw guilty pleas where their lawyers fail to advise them of the immigration consequences of such a plea, and protecting the redistricting process in the face of the Trump administration’s shenanigans around the census.

The cash bail decision wasn’t especially close, in part because since Turner, the law had already been moving in this direction on the issue—but if it had been, a Justice Kruger on the bench with a decade of advocacy in the area would be vital in persuading her colleagues. Biden has received plaudits for promising to create a federal bench that looks like America, and one that rewards careers in public interest and civil rights law. Attorneys around the country spend decades planning and strategizing the kinds of litigation that will ensure that voting rights, criminal rights, racial inequality, education, poverty, and employment law bend toward a more inclusive and diverse country. We can’t always know in advance how any single courtroom victory, like Turner, may change the arc of legal history, but we can surely see that the designers and builders of this vision should be on the bench in vast numbers to ensure that they do.

Biden needs to move quickly now. As has been well documented, the past four years have seen a rapid succession of federal judges appointed to the bench by Trump and confirmed by the Mitch McConnell–led Senate. More than 225 federal judges were appointed by Trump—more than a quarter of currently active federal judges. Like Kruger, many were themselves effective advocates before they became judges—but they advocated for very different clients and outcomes, including limiting women’s health, marginalizing LGBTQ teens, and immunizing the very wealthy from legal consequences. Indeed, the lawyer who once opposed Kruger in the Turner case, arguing that it was perfectly acceptable to jail someone merely for his inability to pay? That was one Stephanos Bibas—now Judge Bibas, appointed by Trump to a lifetime seat at the 3rd U.S. Circuit Court of Appeals.

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