Bail Cannot Be Imposed Without Considering Ability to Pay, CA High Court Rules

In a landmark ruling on cash bail, the California Supreme Court ruled that courts cannot keep detainees behind bars just because they cannot afford to post bail.

The California Supreme Court building in San Francisco. (Courthouse News photo / Maria Dinzeo)

SAN FRANCISCO (CN) — Judges must consider a person’s ability to pay when setting bail, and can only keep someone in jail pretrial if there are no other less restrictive ways of protecting public safety, the California Supreme Court ruled Thursday.

“The common practice of conditioning freedom solely on whether an arrestee can afford bail is unconstitutional,” Justice Mariano-Florentino Cuéllar wrote for the unanimous court.

The decision upholds an earlier ruling ordering a new bail hearing for Kenneth Humphrey, an indigent man whose $350,000 bail for stealing $7 and a bottle of cologne ignited a legal battle over the constitutional merits of the money bail system in California. Humphrey has since been released from jail on non-financial conditions.

San Francisco Public Defender Mano Raju told reporters on a press call Thursday that he had spoken with Humphrey that morning.

He’s thrilled. What we have to grasp is that not only is Mr. Humphrey not a threat to public safety, he’s an asset. He’s taken on a role of a mentor to many in the community. As he’s been diligently working to improve his own life, he’s been a counselor, a support, a friend to so many others and has helped change the lives of so many others for the better.”

Cuéllar wrote that in principle, pretrial detention should be imposed on those who pose a public safety risk or cannot be relied on to make their court appearances. 

“But it’s a different story in practice: Whether an accused person is detained pending trial often does not depend on a careful, individualized determination of the need to protect public safety, but merely — as one judge observes — on the accused’s ability to post the sum provided in a county’s uniform bail schedule.”

The high court ruled that judges should only detain suspects if they find by clear and convincing evidence that there are no other less restrictive, non-financial conditions of release available to protect public safety.

“Pretrial detention on victim and public safety grounds, subject to specific and reliable constitutional constraints, is a key element of our criminal justice system. Conditioning such detention on the arrestee’s financial resources, without ever assessing whether a defendant can meet those conditions or whether the state’s interests could be met by less restrictive alternatives, is not,” Cuéllar wrote.

The ruling comes in the midst of a long-running fight between the bail industry and California lawmakers who would like to see the practice sharply curtailed, if not abolished, in the Golden State.

This week, a pair of bills that would set bail at $0 for a host of criminal charges passed through key committees in both chambers. But lawmakers said Tuesday that whether they go any further depends on the court’s ruling in the Humphrey case.

Last November, California voters rejected a measure that would have enacted Senate Bill 10, a law that abolished cash bail in favor of computer-based “risk assessment” models. 

One of the authors of the new legislation, Senate Majority Leader Bob Hertzberg (D-Los Angeles), celebrated the ruling in a statement. 

“Hallelujah! We knew this day would come,” he said. “Cash bail is unjust, and what the court made clear is that cash bail does not work. It does not make us safer, it wastes tax payer money, and it is discriminatory. We still have more to do, but this is a great day.”

Under the risk assessment models, judges would decide whether and under what conditions pretrial detainees can be safely released to await trial. Assailing risk assessments as inherently biased, opponents ran a successful campaign to scuttle SB10 at the ballot box.

Humphrey’s appellate counsel Alec Karakatsanis said Thursday that the decision doesn’t address how quickly bail hearings should occur or which offenses should be eligible for detention — issues that could be left up to the Legislature.

Perhaps seeing the writing on the wall for their industries, bail bonds companies have also begun to change their business models to focus on pretrial monitoring services. These companies, Karakatsanis said, have started charging the same or or even higher fees for electronic monitoring and GPS devices, pretrial supervision and drug testing.

“We’re seeing the financial interests that are behind  the money bail system just morphing and changing the facade on their business,” he said. “There’s a lot of work the Legislature needs to do in order to prevent the same system of traction and surveillance from being reproduced with a slightly different label.”

For now, he said the court’s decision “will go a long way toward eradicating wealth-based human caging in our country.” 

But it’s up to judges to follow it.

“Constitutional rights are not self-executing,”  Karakatsanis said, adding that in affirming the appellate court in Humphrey the Supreme Court clarified to judges what exactly is binding.

“I can’t say if judges will follow it on their own as a widespread matter. There’s a significant reticence among the California judiciary to change their ways,” he said. “The test will really be are they going to follow the law — not just the letter of this decision but the spirit — which is that any time someone is caged prior to trial it should be an extremely rare circumstance that has to be justified by the utmost rigor.”

“For many many years, too many judges have been using bail to detain people without saying so,” Raju said. “And the impact of this is it has been forcing people to give up their rights, and it has been forcing unjust, prosecutor friendly plea bargains. Today is a huge step towards ending that practice.”

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