Historic California Supreme Court Bail Ruling Leaves Pretrial Detention Question Unanswered

The high court ruled courts cannot imprison suspects simply because they cannot afford bail. But it left open the question of when someone should be detained pretrial.

In this April 16, 2020, photo a gloved hand points to a holding cell at the hospital ward of the Twin Towers jail in Los Angeles. (AP Photo/Chris Carlson)

SAN FRANCISCO (CN) — The California Supreme Court reinforced the constitutional principle of liberty over detention when it ruled Thursday that judges should heavily weigh a person’s ability to pay when setting bail, effectively mandating — with limited exceptions — freedom for all indigent suspects awaiting trial.

But however landmark its opinion on unaffordable bail, the court left open the question of when someone should be jailed before trial.

The court’s unanimous opinion penned by Justice Mariano-Florentino Cuéllar touched on this, saying that courts must balance the right to pretrial liberty with the state’s interest in protecting the public. Such a balance, Cuéllar wrote, “requires a reasoned inquiry, careful consideration of the individual arrestee’s circumstances, and fair procedures.” But he added, “this is not a case that requires us to lay out comprehensive descriptions of every procedure by which bail determinations must be made. We leave such details to future cases.”

The court’s ruling centers on Kenneth Humphrey, a retired shipyard worker whose bail for robbing a neighbor of $7 and a bottle of cologne was initially set at $600,000 by a state judge, then lowered to a still-unattainable $350,000.

The justices upheld an appellate court’s ruling that the judge had erred in not considering Humphrey’s ability to pay that amount, and said courts must not effectively detain suspects just because they lack the resources to post bail.

“The common practice of conditioning freedom solely on whether an arrestee can afford bail is unconstitutional,” Cuéllar wrote.

Kellen Funk, a professor at Columbia Law School and scholar on the history of the American bail system noted that at oral argument in January, the justices spent a lot of time analyzing two sections of the state Constitution that seemed to be in tension with each other. 

Article 1, Section 12 of the California Constitution guarantees the right to bail for every Californian and sets very limiting parameters for denying it, though voters amended Section 28 add that “Public safety and the safety of the victim shall be the primary considerations” for setting bail.

“The key question is who is eligible to be detained outright in the state of California. I’m somewhat surprised the court did not reach this question, as it was very much on the court’s mind at oral argument,” Funk said.

He said the court appeared to be saving the issue for another day by not getting into it too deeply, adding, “The upshot is if the lower courts take this very seriously and make pretrial detention rare, it may be awhile before we see the case that tees up that question of who is eligible to be detained pretrial.”

The fundamental right to pretrial liberty is not a new concept. Funk said the court made this clear in citing a number of decades-old cases from the United States Supreme Court, notably Bearden v. Georgia and United States v. Salerno.

“In a lot of ways what this ruling is doing is saying things have already been said about the regulation of bail,” Funk said.

Bearden limited a court’s ability to revoke a man’s probation and imprison him because he could not pay a court-ordered fine. Justice Byron White wrote that to deprive him of his conditional freedom “would be contrary to the fundamental fairness required by the Fourteenth Amendment.”

Salerno requires courts to set the least restrictive, non-financial release conditions necessary to ensure public safety.

“These are principles that courts have been long familiar with,” Funk said, adding that it was not an empty gesture for the Supreme Court to restate them in the Humphrey decision. “This is a strong signal to the lower courts, telling courts that their common practices are unconstitutional. Pretrial detention should be unusual.”

But it’s not as unusual as it should be. “Even though Salerno said and Humphrey reiterated that liberty is the norm and detention is the exception, we have tens of thousands of people who are detained pretrial,” said W. David Ball, a professor at Santa Clara University School of Law who teaches a practicum course on bail reform.

He said the Humphrey ruling also left the issue of public safety unsettled. “Cuéllar didn’t go nearly far enough to talk about what the full scope of what public safety means,” Ball said. 

Ball is one of the legal minds behind an amicus brief to the court that said the notion of public safety should include the safety of the detained, as well as the public at large. 

“Jail is a dangerous place, to our shame, and if you’re arrested you might be subject to a variety of threats to your safety in jail,” he said.

One tragic example is that of Kalief Browder, a young Black man detained pretrial at Rikers Island between 2010 and 2013 because he couldn’t afford bail.  Two of those years were spent in solitary confinement. He hanged himself in 2015, two years after he was released. 

“The larger framework is really about pretrial detention, and some of those questions remain to be worked out,” Ball said. “What remains to be seen is what is going to count for affordable bail? The standard is clear and convincing evidence for either dangerousness or failure to appear, but what is that going to look like? Getting rid of or reducing the role of money is not by itself going to shrink pretrial populations.”

Bail reform advocates are also asking these questions. Raj Jayadev, director of the non-profit Silicon Valley De-Bug said on a press call just hours after the court released its opinion that the ruling left much on the table.

“Though we celebrate this groundbreaking win, the work for pretrial justice is not over. The California Supreme Court punted on a critical call for who can be considered for detention,” he said. “That is clearly where our movement’s focus will now go, given they have left our community vulnerable due to the court’s inability to answer that key question.”

Ball said groups like Silicon Valley De-Bug can hold judges accountable for meeting the Humphrey standard.
“We need to make sure people are following those rules,” he said. 

Ball still remembers ten years ago when a Santa Clara County judge took guilty pleas in her courtroom from pretrial arrestees without attorneys present, a practice that came to light when it was witnessed by a reporter from the San Jose Mercury News.

“She was just asking people if they wanted to plead guilty and get out of there,” Ball said. “This is what we in the business call ‘law on the books versus law on the ground.’ And that’s important to bear in mind.”

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