As my progressive friends cheer the passage of the “end of cash bail” in California, I feel an ominous sense of déjà vu, remembering the reforms passed to humanize mental-health incarceration in the 1960s and the changes made to even out felony sentencing laws in the 1980s. In these cases, liberal good intentions were soon subverted by other interests; the end result became laws that harmed those they were intended to help. Today we have still not provided sufficient mental-health care to meet the need, and we have increased the number inmates and their length of incarceration to such a degree that only the outrageous costs have tempered our lock-up mentality.
In the case of this bail reform, we are, I fear, only headed in the same direction.
This reform’s major promise seems to be the elimination of cash bail and the substitution of somebody’s discretion in its place. I suggest that this is less equitable than an arbitrary but neutral cash bail system, which is not so easily cowed by the public. It is this invitation to subjectivity that will, apparently intentionally, allow the use of “preventive detention” in our state for the first time.