Gov. Gavin Newsom and fellow Democratic lawmakers have expressed no contrition for their failed attempt to force President Donald Trump to release five years of tax returns to gain access to the California ballot in the 2020 general election.

The California Supreme Court recently ruled unanimously that Senate Bill 27, signed by Newsom in July, violated the state Constitution. The opinion by Chief Justice Tani Cantil-Sakauye at times had an incredulous tone, noting that advocates appeared unaware of SB27’s obvious conflict with Proposition 4. That’s a 1972 amendment to the California Constitution easily passed by state voters that requires presidential primaries must be open to all “recognized” candidates.

Further reflecting the state high court’s view that the law was frivolous, the unanimous verdict was delivered just 15 days after justices heard testimony in the case. Court watchers said that was highly unusual.

A federal judge had already ruled the law violated the U.S. Constitution in September. That decision was appealed by Secretary of State Alex Padilla, but the appeal was dropped after the state Supreme Court’s ruling.

Nevertheless, a spokesman for Newsom continued to depict the now-void law as well-intentioned.

Jesse Melgar told the San Francisco Chronicle that the governor “would continue to urge all candidates to voluntarily release their tax returns. … Congress and other states can and should take action to require presidential candidates to disclose their tax returns.”

Padilla issued a statement expressing disappointment with the state high court’s decision but also declaring “the movement for greater transparency will endure. The history of our democracy is on the side of more transparency, not less.”

‘Ridiculous’ bill said to reflect ‘arrogance and hypocrisy’

Defenses of the law were scoffed at by opinion writers.

The Sacramento Bee editorial board – which had ripped SB27 as “silly and destructive” when Newsom signed it into law – wrote that the measure  “was so ridiculous and flawed that even California’s justices could barely conceal their disdain.” 

The Southern California Newspaper Group’s editorial noted that the state high court “quoted former Gov. Jerry Brown’s veto of a similar bill in 2017: ‘Today we require tax returns, but what would be next? Five years of health records? A certified birth certificate? High school report cards?’

“Democratic lawmakers and a new governor refused to learn from that message. They tried again and embarrassed themselves. They richly deserved the court’s smackdown.”

The Los Angeles Times editorial board wrote that the tax-returns law “accomplished only one thing: giving Trump more ammunition against the state he loves to mock.”

Times columnist George Skelton was the harshest critic of all, noting that many of the Democrats who claimed the moral high ground in backing the tax-returns requirement were not transparent about their own finances.

“This is not about whether Trump should release his federal tax returns,” he wrote. “Rather, it’s about Democrats enacting a blatantly unconstitutional law with a straight face for purely political reasons. It’s about arrogance and hypocrisy.”

Part of SB27 that was reportedly included at Newsom’s behest remains intact. It’s the requirement that gubernatorial candidates provide five years of tax returns to qualify for the ballot beginning with the 2022 election.

The bill was introduced by Sen. Mike McGuire, D-Healdsburg, and Sen. Scott Wiener, D-San Francisco. It passed in Senate on a 29-10 vote and in the Assembly on a 57-17 vote in early July.

A bill with the potential to worsen California’s already-frosty relationship with the Trump administration passed the Legislature on a near-party-line vote in late August and was presented to Gov. Jerry Brown for his signature last week.

Senate Bill 349, by state Sen. Ricardo Lara (pictured), D-Bell Gardens, is a direct response to the U.S. Immigration and Customs Enforcement’s embrace of the tactic of detaining unauthorized immigrants when they come to state courthouses to deal with matters in the California criminal justice system.

Exact statistics are not provided by ICE on its detentions. But there have been regular reports of ICE raids at state courts and their parking lots in California – especially in the Fresno area – as well as in Arizona, Texas and Colorado within the last year.

ICE officials issued a formal notice in January of their intent to go after targeted individuals when they have scheduled appearances in state courts. Some have said they moved to adopt new policies after the California Legislature adopted and Gov. Brown signed “sanctuary state” legislation last year limiting state cooperation with federal immigration officials.

Lara’s bill would specify that state court officials have the authority to block activities that interfere with the proceedings and operations at state courts. It would require federal immigration agents to have a warrant before they can enter schools, courthouses and state buildings to arrest or question people. It would ban civil arrests in courthouses and authorize the state Attorney General’s Office to pursue civil claims against individuals who violated SB349’s provisions.

The legislative aides who wrote the analysis of the bill cited historical evidence that the practice of not picking up people at courthouses for offenses unrelated to their visits – known as “the common law privilege for civil arrests” – goes back hundreds of years and far predates any controversy over illegal immigration.

Brown and state Attorney General Xavier Becerra have been joined in their sharp criticism of ICE’s tactics by California Supreme Court Chief Justice Tani Cantil-Sakauye. In a statement issued last month, she blasted arrests at state courts as “disruptive, shortsighted, and counterproductive … . It is damaging to community safety and disrespects the state court system.”

Some sheriffs want more cooperation with feds

Nonetheless, conservative sheriffs in some counties who oppose “sanctuary” policies are supportive of ICE’s aggressive tactics, according to a recent report in the Los Angeles Times. Fresno County Sheriff Margaret Mims is openly looking for ways to increase her department’s cooperation with ICE in spite of the state law.

That suggests that even if Lara’s bill is signed by Brown, some police agencies may be far less enthusiastic about enforcing it than others. Court battles over what exactly “sanctuary”-style laws compel these agencies to do seem likely.

At issue is the scope of the generally accepted doctrine that the federal government cannot compel state law enforcement agents to enforce federal regulations and that state laws prevail unless they directly conflict with federal laws.

Historically, conservatives in the post-Reagan era and Southern Democrats in the 1950s and 1960s have had more of a “states’ rights” approach to interpreting this doctrine, while liberals have leaned more toward the idea that the federal government deserves deference in gray areas open to different interpretations.

In the Golden State, these political roles have been swapped in the Trump era.

While sharply critical of the Trump White House on many immigration issues, Brown has not commented specifically on Lara’s bill. He has until Sept. 30 to sign or veto it and the hundreds of other passed bills he has not yet made a decision on.

Lara is the Democratic candidate for state insurance commissioner on the November ballot. He is running against Steve Poizner, who is now an independent after serving as insurance commissioner from 2007-2011 as a Republican.

Seven months after her office released sweeping recommendations for reform of California’s bail system, state Supreme Court Justice Tani Cantil-Sakauye may have a chance to force changes without going through the Legislature and Gov. Jerry Brown.

Last week, the state Supreme Court agreed to take up a January appellate court ruling that took dead aim at a bail system that some say turns county jails into “debtor prisons.” More than half of jail inmates are there not because of convictions but because they can’t raise bail, which usually requires providing a bail bonds office with cash or property worth 10 percent of the total bail sum. California has the highest cash bail rates of any state, according to Human Rights Watch.

“A defendant may not be imprisoned solely due to poverty,” Presiding Justice J. Anthony Kline said in a 3-0 decision of the 1st District Court of Appeal that ordered a new bail hearing for Kenneth Humphrey, a retired maintenance worker living in San Francisco who was accused of threatening a neighbor, stealing a bottle of cologne and $5, and demanding more money. Humphrey said he was seeking payment of a debt. But a judge followed a standard bail schedule that took note of Humphrey’s previous felony convictions and set his bail at $600,000, which was later reduced to $350,000.

San Francisco District Attorney George Gascón welcomed the Supreme Court’s decision to take up the case, which he had requested after state Attorney General Xavier Becerra chose not to appeal the appellate ruling. “We’re pleased,” he told the San Francisco Chronicle. “I’ve made it very clear that I’m not a proponent of money bail. But getting rid of money bail doesn’t entail that we will never have pretrial detention. There are still some people that are going to be either a flight risk or dangerous, and what we have now is a state of the law that is unclear, and the standard in terms of dangerousness may be way too high.”

Cantil-Sakauye urged bail changes in 2016 speech

While the appellate ruling was stayed pending the state high court’s ruling, criminal justice reformers were hopeful that Cantil-Sakauye’s history hints at the court’s eventual decision.

The chief justice conveyed her support for bail reform in her 2016 State of the Judiciary speech. A task force she convened issued a report in October that said the state’s system “unnecessarily compromises victim and public safety because it bases a person’s liberty on financial resources rather than the likelihood of future criminal behavior” and was “unsafe and unfair.” It called for pretrial assessments that would help judges gauge the risk posed by each defendant and for “pretrial programs [that] would also give judges more tools to supervise defendants, such as drug testing, home confinement, and text reminders for court dates.”

This approach was used with Humphrey, 64, after the appellate court ruling overturned his $350,000 bail. He was released from jail after agreeing to supervised around-the-clock detention at a substance abuse facility and to wearing an ankle monitor.

Despite lobbying from Cantil-Sakauye, Gov. Jerry Brown and progressive and civil rights groups, the Legislature has so far been mostly cool to two years of efforts led by Sen. Bob Hertzberg, D-Van Nuys, and Assemblyman Rob Bonta, D-Oakland, to scrap the state’s money bail system. Their legislative proposals mirror the recommendations of the chief justice’s task force. One version passed the state Senate last year on a party-line vote before stalling; another was rejected by the Assembly.

California Supreme Court Chief Justice Tani Cantil-Sakauye, in her annual State of the Judiciary address on March 19, renewed calls for bail reform and making the legal system more attuned to the needs of Californians. She also doubled down on oblique criticisms of the White House.

The chief justice called then-Attorney General Robert F. Kennedy’s assertion in 1964 that the bail system is “a vehicle for systemic injustice” a “clarion for justice” in 2018.

Despite efforts in recent years to end the money bail system, they have hit roadblocks. Legislation to revamp bail was defeated last year after vigorous opposition from industry lobbyists and counties concerned with the implementation costs of the reforms.

While Cantil-Sakauye cited progress in criminal reforms over the last several years, she also spoke of a need to expand these efforts to civil cases. She called for the state to offer better self-help services to citizens who appear in court without attorneys. The problem is particularly acute in civil cases, where she cited a statistic of at least one side not having a lawyer in three-quarters of cases.

The address also contained clear references to President Donald Trump, even if he was never explicitly named.

“On the national front, we have unprecedented disruption, attacks on the free press, threats to the rule of civility, the Rule of Law, and judicial independence,” she told the joint session of the state Legislature.

The chief justice also addressed the U.S. Attorney General Jeff Sessions’ controversial announcement that the Justice Department would take the Golden State to court over its sanctuary city policies.

“We know that in California, California’s right to govern its own affairs is now being litigated in federal court. So it’s only natural that, nationally, the Law Day theme this year is ‘Separation of Powers: Framework for Freedom,’” said Cantil-Sakauye.

Cantil-Sakauye was appointed chief justice in 2011 by outgoing Gov. Arnold Schwarzenegger. Her 12-year term is set to expire Jan. 1, 2023.

Last week could be remembered as a turning point for California criminal justice as state Attorney General Xavier Becerra

Becerra did so with his announcement that he would not challenge a state appellate court ruling that ordered a new bail hearing for a retired shipyard worker in San Francisco who had been held in jail for more than eight months, unable to raise $350,000 bail. Kenneth Humphrey was accused of threatening a neighbor and stealing from his apartment.

The appellate panel held it was unacceptable to set bail so high for a defendant who appeared to not be a public threat. Becerra agreed with the finding and going forward essentially encouraged public defenders to routinely challenge bail they found unjust by saying his office would no longer defend heavy bail or bail that was imposed by local judges without a consideration of flight and safety risks or bail alternatives.

The state’s harsh bail practices were the target of legislation meant to end the “money” bail system that Sen. Bob Hertzberg, D-Los Angeles, and Assemblyman Rob Bonta, D-Alameda, introduced in late 2016. Senate Bill 10 would have in many cases eliminated bail, based on assessments of the accused’s flight risk and danger to the public. It also would have directed judges to consider the ability of accused individuals to raise bail.

The Hertzberg-Bonta initiative was in response to complaints from civil rights groups that heavy bail destroyed lives by costing the accused their jobs or their ability to attend school and preventing them from becoming productive individuals. More than half of those in county jails in California are there because of an inability to make bail, not any convictions.

Governor, chief justice negotiating final reform plan

The measure made some progress last year until it was abruptly pulled on Aug. 25 with an announcement from Gov. Jerry Brown that he and state Chief Justice Tani Cantil-Sakauye would work with Hertzberg and Bonta to fine-tune their measure before bringing it back to the Legislature this year.

“I believe that inequities exist in California’s bail system and I look forward to working this fall on ways to reform the system in a cost-effective and fair manner, considering public safety as well as the rights of the accused,” the governor said in a statement.

Brown is looking to carve out a late-career legacy on criminal justice reform, playing a key role in the adoption in 2016 of Proposition 57, which makes it easier for those accused of nonviolent and some violent crimes to win parole. Crime experts have long pointed out that crime is largely a young man’s game and that nations with relatively few prisoners in their 40s or 50s are at least as safe as the United States.

But the strength of the case for bail reform so far is somewhat murkier in the United States. While some local governments report success – notably in New Orleans – a bold bail reform law that took effect on Jan. 1, 2017, in New Jersey at the behest of then-Gov. Chris Christie has proven controversial. It uses algorithmic tools to determine whether cash bail should be assessed.

While the new law is credited with reducing New Jersey’s jail population 19 percent in its first five months, one of the algorithm’s decisions didn’t work out. The tool recommended the release last April of a Bridgeton, New Jersey, man named Jules Black, 30, after he had been arrested on suspicion of being a felon in illegal possession of a firearm. Days later, Black allegedly killed Christian Rodgers, 26, a neighborhood adversary, after shooting at him 22 times.

Rodgers’ mother, June, is suing Christie, the inventor of the bail assessment tool and others, seeking wrongful death damages and an injunction preventing further use of the bail algorithm.

Not only has it been a disappointing year for the lawmakers and civic leaders behind the recent push for sweeping reforms of California’s criminal justice system, their achievements are under harsh fire in Los Angeles County.

Last December, Assemblyman Rob Bonta, D-Oakland, and state Sen. Bob Hertzberg, D-Los Angeles, proposed to largely scrap cash bail on the grounds that it wasn’t essential to getting people to show up for their trials, was destructive of individuals’ lives and would sharply reduce costs and crowding at county jails. But while one of the two related bills the lawmakers introduced passed the Senate on mostly party lines, the other stalled on the Assembly floor, only getting 35 votes in support. The bail bonds industry has strong relationships with both parties, especially in urban areas where bail bond agents are often significant donors.

On Friday, Gov. Jerry Brown and Chief Justice Tani Cantil-Sakauye announced their support for the measure – but for review and passage in 2018, not the remaining few days of the current legislative session.

The support of Brown and Cantil-Sakauye was depicted as good news by Bonta and Hertzberg. But the governor’s and chief justice’s delay in getting on the bandwagon and the Assembly’s coolness to the concept showed that bail reform never enjoyed as much support as two other recent criminal justice reform measures. Adopted by state voters in 2014, Proposition 47 reclassifies several nonviolent crimes as misdemeanors instead of felonies for those without criminal records involving crimes of violence or related to guns. Approved in 2016, Proposition 57 made it easier for those guilty of “nonviolent” crimes to win parole.

Reforms face intense blowback in L.A. County

Now, however, enthusiasm for these reforms has faded in the largest county in the state and nation.

In Los Angeles County, some law enforcement and women’s groups are upset with Proposition 57 over how many of the crimes it considers “nonviolent” involve considerable violence, including types of sexual assaults.

But many local leaders, politicians, law enforcement members and citizens are furious over the effects of Proposition 47. They say it amounts to a “get out of jail free” card for drug addicts who no longer face incarceration for their crimes but who face no punishment when they don’t honor requirements they meet with drug counselors. Anecdotes about addicts being arrested over and over and over without consequence have been common in police circles for more than two years. Similar stories abounded in a harsh October 2015 Washington Post analysis of the early effects of Proposition 47. It concluded the well-meaning state law kept addicts out of jail, but not out of trouble.

These concerns led Los Angeles County supervisors to vote 3-0 on Aug. 15 to set up a commission to examine “the challenges and opportunities” created by Propositions 47 and 57 and AB109, a 2011 state law that “realigned” criminal justice by having those convicted of many “low-level” crimes serve their sentences in county jails instead of state prisons.

The reforms have been the focus of anger over two gun murders on Feb. 20 in Los Angeles County, allegedly committed by convicted felon Michael C. Mejia – one of a family member, the other of Whittier police Officer Keith Boyer. Mejia had been released from state prison 10 months before the killings and the Los Angeles gang member reportedly committed several parole violations without being sent back to state prison before Feb. 20.

After the killings, Whittier Police Chief Jeff Piper and the Los Angeles Police Protective League blamed AB109 and Proposition 47 for making it easier for Mejia to avoid being returned to state prison for breaking parole.

Reformers said Proposition 47 had nothing to do with Mejia’s treatment. They said that while AB109 changed how Mejia was treated after being released from prison, it did so by assigning responsibility for his oversight to the Los Angeles County Probation Department – not the state corrections department.

But the argument that the county was blaming state reforms for its own failings never took hold. The day after officer Boyer’s death, Los Angeles County Sheriff Jim McDonnell said state reforms were “putting people back on the street that aren’t ready to be back on the street.” He said his jail system had so many dangerous inmates that it amounted to a “default state prison” – undermining claims that reforms would have positive or benign effects on local communities.

The leading proponent of the proposal is California Supreme Court Chief Justice Tani Cantil-Sakauye. She is working on a plan to decriminalize minor traffic infractions by having them handled in civil court instead of criminal court.

Cantil-Sakauye told the Los Angeles Times that it is unacceptable that people who are too poor to pay tickets or who miss court hearings related to the tickets end up in jail or are unable to get to work, wreaking havoc in their lives.

But the change would also help the state court system by limiting how much time criminal courts spend on traffic cases. Reformers say that nearly three-quarters of criminal cases involve traffic tickets, more than 4 million of which are given out annually.

Poor seen as victimized by policies

The shift of such infractions as running a stop sign, illegal lane changes or speeding modestly (up to 15 mph over the limit) to civil courts would involve lowering the burden of proof from beyond a reasonable doubt to reasonable certainty – also a change that would save resources.

Momentum for the changes has built in recent weeks after the Lawyers’ Committee for Civil Rights of the San Francisco Bay Area released a report showing unpaid traffic tickets took a heavy toll on the lives of poor Californians.

It noted that from 2006 to 2015, one-sixth of California adults – 4 million people – had their licenses suspended because of unpaid traffic tickets. It documented that nearly four out of five workers commuted in vehicles and argued that the punitive effects of Golden State traffic policies went far beyond reasonable punishments. That’s because while the fines for certain driving offenses are relatively low – $100 for running a red light – state lawmakers for years have added fees to the tickets to help fund state programs. The total ticket cost for running a red light is $490 in California, vastly higher than other states. The result of this approach is state drivers being assessed nearly $10 billion a year for their infractions.

The rationale that criminal penalties are disproportionately and unnecessarily harsh has driven the three other legal reform pushes seen in the state since 2014.

That year, California voters approved Proposition 47, championed by Gov. Jerry Brown. It made state sentencing policies less punitive by classifying many crimes considered “non-serious” and “non-violent” as misdemeanors instead of felonies, unless the defendant had criminal histories of major crimes.

In 2016, California voters approved Proposition 57, once again at Brown’s behest. It made it easier for felons to win parole if they have constructive records in prisons and also gave judges the decision-making authority on whether juvenile suspects should be prosecuted as adults, not prosecutors.

Dramatic changes in bail rules win Senate OK

In the current session of the state Legislature, lawmakers are considering perhaps the most far-reaching changes yet. Assemblyman Rob Bonta, D-Oakland, and state Sen. Bob Hertzberg, D-Van Nuys, have each introduced bills that would end the state’s practice of requiring formally accused criminal suspects to pay heavy cash bail. They say there is strong evidence that governments with much less onerous bail policies than California – which has the harshest in the nation – have just as good a record of getting the accused to show up for trials.

Bonta’s and Hertzberg’s bills would yield sharp savings for local governments. That’s because a majority of inmates in county jails are there because they can’t pay bail or afford bail bondsmen who charge a 10 percent of bail fee to guarantee they will show up in court.

Hertzberg’s bill passed the Senate 26-11. But the Assembly is more skeptical. It recently rejected Bonta’s identical bill on a 35-37 vote.

But in recent years, a variety of criminal-justice reforms have been pushing the pendulum back in the other direction, albeit in a relatively quiet way. In 2014, California voters approved Proposition 47, which reduced some crimes from felonies to misdemeanors. Furthermore, Gov. Jerry Brown succeeded in implementing his “realignment” plan that moved many state prisoners to county jails.

Crime has gone up in major California cities since then and it’s not clear how much those measures contributed to the problem. But it doesn’t appear the recent uptick has slowed the push for reform.

In the Nov. 8 general election, voters rejected an effort to repeal the death penalty and, by a close margin, appear to have approved a measure designed to speed up executions. Nevertheless, voters also approved Proposition 57 by a wide margin. As the Legislative Analyst’s Office explains, the measure will “increase the number of inmates eligible for parole consideration” and make “changes to state law to require that youths have a hearing in juvenile court before they can be transferred to adult court.” The marijuana-legalization measure voters also approved would enable judges to expunge some people’s marijuana convictions.

The ballot box isn’t the only place where reform is moving forward. When the Legislature reconvenes in December, some legislators will almost certainly introduce bills that would reform the state’s system of “money bail.” It’s part of a nationwide reform movement headed by groups such as the American Civil Liberties Union.

Many are unfamiliar with the system by which criminal defendants post a bond that allows them to avoid jail time as their case winds its way through the system. A judge will set a bail amount that reflects the severity of the alleged crime and the defendant’s perceived flight risk. The defendant can post the full amount, which would be forfeited if he or she doesn’t show up at the appointed court date. Those who lack the resources also can go to a bail bonds company and pay a nonrefundable percentage (commonly 10 percent) of the bail. The bail bondsman posts the full amount and assumes liability to assure the defendant shows up for trial.

The bail bonds industry argues the system works well as it is designed. “When it comes to guaranteeing appearance at court, surety bail outperforms every form of public sector pretrial release and own recognizance release as well,” according to the American Bail Coalition. The group, supported by bail-bonds companies, argues the current system also offers a cost-effective approach that costs the courts nothing for to supervise 2 million released defendants each year. Bail defenders also point to the taxes paid by the bail industry – and cite studies showing cost savings to counties.

But critics of the system, including the chief justice of the California Supreme Court, have raised some concerns. “Over time the discussion about bail (has become): Does it really serve its purpose of keeping people safe? Because if you’re wealthy and you commit a heinous crime, you can make bail,” said Chief Justice Tani Cantil-Sakauye, in a March 2016 editorial board meeting with the Sacramento Bee. The problem, as the Bee and others have raised, is that poor people often don’t have the financial wherewithal to post bail. That forces them to stay in jail while wealthier people get to go home on their own recognizance and await trial. The chief justice has created a task force to review the issue.

Critics say the bail situation also encourages poor people to accept plea bargains, given that months in jail — and our court system moves very slowly — could cause their lives to collapse. If they are in jail rather than working, they lose their apartments and their possessions. Their kids are often taken by Child Protective Services. It’s a problem not just for the poor people who are affected, but also for the state’s perpetually overcrowded jail system. More than 60 percent of people in California jails have not yet been sentenced for any crime.

As the nonpartisan Public Policy Institute of California reports: “From 2000 to 2009 (the latest comprehensive data available for felony cases), California’s large urban counties relied on pretrial detention to a much greater extent than did large urban counties elsewhere in the United States. … Part of the difference in detention rates may be attributed to California’s higher bail amounts. The median bail amount in California ($50,000) is more than five times the median amount in the rest of the nation (less than $10,000). Research has demonstrated that pretrial release rates generally decline as bail amounts increase.”

In July, some Democratic state legislators held discussions in Oakland on the matter. San Francisco District Attorney George Gascón said that “at least 29 jurisdictions have developed ‘risk-assessment’ models, which allow court and pretrial staff to use data and other evidence to determine whether a person should be released,” according to a news report. That’s a likely model for coming proposals: shifting toward a system based more on judicial risk assessments than on the ability to post a bond. Assemblyman Rob Bonta, D-Oakland, announced his intent to introduce legislation when the Legislature is back in session.

The U.S. Justice Department also has weighed in on behalf of bail reform in a Georgia case. The department argues that “bail practices that incarcerate indigent individuals before trial solely because of their inability to pay for their release” violate the 14th Amendment of the U.S. Constitution. However, a U.S. district judge rejected a similar argument in a Sacramento County case.

“The state’s interest in ensuring criminal defendants appear for trial dates is a legitimate one, and detaining individuals before their arraignment is rationally related to that legitimate interest,” U.S. District Judge Troy Nunley wrote last month in the case. As the San Francisco Chronicle reported, “Nunley refused, at least for now, to dismiss a claim that the bail system is unfairly punitive.” Nunley is an appointee of President Barack Obama.

Other similar cases are moving forward across the country, including in San Francisco. There, Public Defender Jeff Adachi commissioned a study finding that black inmates are more likely to be kept in jail awaiting trial than their white inmates facing similar charges. Clearly, this issue will be heating up in the coming years, with a new Republican administration throwing more uncertainty into the situation, given the role the Obama Justice Department has played in the matter.

Critics also note the current system isn’t cost free, and that some states have moved to a risk-assessment system. “Risk assessment detention not only stems some of the unjustified inequalities on the impoverished but it also has proven to save the state money and actually prevent further crime by trying to keep the accused employed and out of trouble,” argues my R Street Institute colleague, Arthur Rizer, director of criminal justice policy. The current system, he adds, ends up “bloating our already bloated jails.”

Not all reformers look to eliminate money bail. Various compromises could emerge, including measures that eliminate bail for certain cases, or efforts to create easier ways for poor defendants to afford bonds. This is an emerging reform movement, so we’ve yet to see the kind of compromises that might emerge in the California Legislature. 

Steven Greenhut is Western region director for the R Street Institute. Write to him at sgreenhut@rstreet.org.

By Dave Roberts

“A sense of confidence in the courts is essential to maintain the fabric of ordered liberty for a free people. And three things could destroy that confidence and do incalculable damage to society: that people come to believe that inefficiency and delay will drain even a just judgment of its value; that people who have long been exploited in the smaller transactions of daily life come to believe that courts cannot vindicate their legal rights from fraud and over-reaching; that people come to believe the law — in the larger sense — cannot fulfill its primary function to protect them and their families in their homes, at their work and on the public streets.”

— Former Supreme Court Chief Justice Warren E. Burger

California’s “fabric of ordered liberty” is being torn to shreds by the state’s latest round of budget cuts to the judiciary. In the past four years the judicial branch has suffered $653 million in cuts — a nearly 32 percent reduction in general fund support —  $606 million of it taken from the trial courts alone. The current state budget siphons an additional $544 million from the judiciary.

The cuts “have a serious impact on the ability of the courts to provide timely due process in California,” said California Chief Justice Tani Cantil-Sakauye at a Judicial Council meeting in San Francisco on Friday.

Cantil-Sakauye invited William Robinson, president of the American Bar Association, to discuss the budgetary impacts.

“When I read the headlines from Sacramento, San Francisco and other communities around the state, like so many other Americans, I am stunned,” said Robinson. “There is really no time to fret about the truly devastating effects of a billion dollars in cuts to our courts. Who could ever have envisioned that in our lifetime the courts would be experiencing this?”

California is not alone in its judicial devastation; 42 states cut funding to their judiciaries last year, according to Robinson. His home state of Kentucky has cut judicial funding by 45 percent since 2009.

“In times of financial crisis our courts actually face more demand, more pressure for delivering justice,” he said. “And yet the money shrinks and shrinks and shrinks. But our judiciary is a co-equal branch of government and deserves to be funded as such. The courts are the linchpin of our constitutional democracy. No one would seriously consider for budgetary reasons closing a firehouse or a police station or a hospital emergency room one day a week — it’s unthinkable. But our courts are the emergency room of democracy. That’s where the triage for constitutional rights is administered and decided upon case after case after case.”

But instead of performing triage for constitutional rights, the courts are performing triage on themselves as they deal with the fiscal hemorrhaging.

Hemorrhaging

• Los Angeles County has mandated unpaid days off, known as furloughs, and has laid off 329 employees and 574 positions are vacant.
• San Francisco has instituted furloughs, laid off 78 and has a 29 percent vacancy rate. The lines and wait times for service are longer and backlogs are growing.
• Alameda County, where Oakland has one of the highest crime rates in the country, has instituted furloughs, laid off 97, eliminated services at two courts and reduced hours at another court.
• Contra Costa County has permanently shut down a criminal courtroom, closes the family and civil courtroom when the judge is on vacation or out of town and may shut it down altogether. In addition to furloughs, 120 positions have been eliminated, there is a 27 percent vacancy rate and self-help legal services may be cut in half.
• Kern County has instituted furloughs, has a 9.6 vacancy rate and the Bakersfield family law court is so busy that by 10 a.m. the appointments are filled up for the rest of the day.
• Mendocino County has imposed furloughs, laid off 21 percent of staff and permanently closed its Willits court, forcing residents to travel to the Ukiah courthouse.
• Mono County has a 33 percent vacancy rate, resulting in delays in processing filings and citations, has reduced customer service and is experiencing low morale from the overworked staff.

Furloughs

One of the hardest hit is San Joaquin County, home of bankrupt Stockton with a crime rate not far behind Oakland’s. It has instituted furloughs, laid off 45 and has 91 vacant positions, representing 26 percent of its staff. Mandatory psychiatric evaluations have been cut in half for most criminal cases, a significant number of small claims hearings have been eliminated due to insufficient staff, court reporters have been eliminated unless required by statute, and they still use typewriters to process juvenile delinquency cases.

Jennifer McMahan, a research attorney in San Joaquin County Superior Court, described in a letter to the Judicial Council just how sorry a state the courthouse is in, noting that she started work there in an area known as “the dump” because it was literally filled with mounds of trash.

“Every corner you turn in our courthouse has something wrong: duct tape holding the carpet together, roaches taking over the bathrooms and hallways, mini blinds falling on judges in their chambers,” wrote McMahan. “My supervisor, a woman who has been a professional for over 20 years and worked for the court for well over 10 years, currently works out of a storage closet at the end of a public hallway.”

Also victimized by the budget cuts are non-English speakers. One interpreter told the Judicial Council about Grace Ho, a blind Cantonese woman living in a San Jose apartment infested with bedbugs, resulting in her throwing away much of her belongings. When she took the landlord to court for restitution, the court did not provide an interpreter. Her friend stepped in to help, but much of the legal proceeding was lost in translation. Teresa Molina said in Spanish (translated by an interpreter) that when she was in court, her 13-year-old daughter had to translate for her because the court did not provide one.

Although judicial fingers of blame for the budget crisis have been pointed at Gov. Jerry Brown and the Legislature, the judiciary’s own bureaucratic incompetence has resulted in a significant waste of taxpayer dollars. Last year a state audit revealed that the effort to computerize the judicial branch was seven years behind schedule and had a seven-fold cost overrun to $1.9 billion from the originally estimated $260 million. In March the Judicial Council finally pulled the plug on the boondoggle.

Court waste

The Administrative Office of the Courts, which was responsible for that boondoggle, was blasted in a report in May by a judicial committee. “Many of the AOC’s management functions — including the manner in which it carries out its decisions, plans projects, and exercises fiscal options — are flawed, lack transparency, and require a major revision,” the report states.

The AOC’s staff metastasized from fewer than 300 in 1992 to more than 1,100 in 2010. In the process, it became top-heavy, unwieldy and developed a culture of control rather than of service. According to the report, “Widespread concerns exist that budget information has not been effectively or accurately communicated, and that obtaining budget information is difficult. It is difficult to understand what is funded or how it is funded. Whether justified or not, there is currently a lack of faith in the fiscal information released by the AOC. It does not appear that management has made accurate and timely financial information a priority.”

The Judicial Council has also been blasted by the Alliance of California Judges. Last year it wrote that the council’s refusal “to authorize additional trial court relief of at least $82 million while preferring a large central bureaucracy, a questionable computer system, and also refusing to briefly delay site acquisition and preliminary work for costly court construction that is nowhere close to breaking ground, demonstrates that the problem at its heart is an issue of governance.”

The accusation that the problem is an issue of governance could be leveled at the executive and legislative branches as well. While California’s Neros fiddle, the state’s residents continue to get burned.

Here’s my criterion for justices to the California Supreme Court: That they be good justices. That’s it. I don’t care about their race, their creed, their color, their sex. They could be Martians.

Just: Interpret the California Constitution — and, when necessary, the U.S. Constitution — according to the actual words, not according to some nutty judicial philosophy, whether liberal or conservative.

Looks like that’s not what we’re going to get from Gov. Jerry Brown. According to Chief Justice Tani Cantil-Sakauye, who talked with him, “He’s interested in ethnic diversity, he’s looking at academic professor types and also for someone young who will stay a while.”

Not a word about the judicial temperament of the new justice. Nothing about following the state and U.S. constitutions. Nothing about having even a drop of “good old common horse sense,” a quality that my late father, a district judge in Michigan for 25 years, said was essential to being a good judge.

So we’ll get another ideologue who will twist the law to fit the straightjacket of the regnant legal ideology of cultural Marxism.

So we’ll get another Rose Bird, an appointment when Jerry last was governor so bad she was kicked off the court by voters.

Appropriately, the state Supreme Court is housed in the Earl Warren Building and Courthouse (pictured above), named after the California governor and attorney general who helped put more than 100,000 innocent Japanese-American citizens into concentration camps. Warren said at the time, “”When we are dealing with the Caucasian race we have methods that will test the loyalty of them. But when we deal with the Japanese, we are on an entirely different field.”

This racist is the model for “justice” in California. Below is a poster ordering the loyal Japanese-Americans into the camps. Notice that it deports to the camps “both alien and non-alien.” There’s another word for “non-alien”: citizen.

Feb. 10, 2011