Landmark ruling on cash bail ‘gigantic’
Judges to expand use of non-jail alternatives, consider ability to pay
In a landmark opinion hailed as a victory for civil rights advocates and criminal justice reformers, the Supreme Court of California ruled Thursday that judges must consider an arrestee’s ability to pay when setting bail and must enforce a higher standard for jailing someone before trial on public safety grounds.
The high court’s unanimous ruling seeks to ensure that no one is kept behind bars while they await trial only because they can’t afford to post bond. And it scales back the role of money bail in deciding who gets out of jail by directing judges to more widely consider non-cash conditions, such as electronic monitoring programs and drug or alcohol treatment, to ensure defendants can be safely released.
“The common practice of conditioning freedom solely on whether an arrestee can afford bail is unconstitutional,” Justice Mariano-Florentino Cuéllar wrote in the court’s opinion. “What we hold is that where a financial condition is nonetheless necessary, 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.”
David Ball, a Santa Clara University law professor who specializes in criminal procedure, called the ruling “a gigantic momentous decision.”
Ball said he anticipates that arguments
over pretrial release in California courtrooms, which previously focused on what bail amount was appropriate for each defendant, will instead shift toward a focus on public safety.
Judges will still have the authority to order a defendant held without the option of bail if they believe the person to be a safety risk. But the opinion states judges must find by “clear and convincing evidence” that the defendant must be kept behind bars to protect the public, which Ball said would lead to more in-depth discussions of whether a person poses a risk.
“You can no longer get around the decision about detaining someone on the basis of public safety by setting an unaffordable bail,” Ball said.
The high court’s opinion is the culmination of a yearslong legal challenge
to California’s cash bail system brought by the San Francisco Public Defender’s Office and the nonprofit Civil Rights Corps.
Opponents of cash bail have long argued the system can mean poor defendants who pose little risk to society, and are presumed innocent until proven guilty, can wind up behind bars for months or years because they don’t have enough money to bail out. Top Democratic politicians, including President Joe Biden, have joined in on calls to abolish cash bail in recent years.
Defendants could lose their jobs, housing or even custody of their children if they are locked up while their cases play out, advocates say, and the time behind bars ramps up pressure to strike plea bargains with prosecutors rather than wait to take their case to trial.
“The injustice of our bail system in this state has been devastating,” said Gina Clayton-Johnson, executive director and
founder of Oakland’s Essie Justice Group. “Bail has been the mechanism that has made mass-incarceration possible.”
The case before the state Supreme Court unfolded separately from another attempt to overhaul California’s cash-bail system that voters rejected last November. That ballot measure, Proposition 25, would have upheld a state law passed in 2018 to end the cash-bail system and replace it with one in which judges decided who to release based on an assessment of their risk to the public.
The bail bonds industry and law enforcement groups that opposed the proposition argued that requiring defendants to put up cash is the best way to ensure they show up for future court dates.
Thursday’s Supreme Court decision does not abolish the cash-bail system altogether. But Jeffrey Clayton, executive director of the American Bail Coalition, said the ruling would likely mean fewer defendants
will have to post bail and those who do would be required to put up less money. Still, Clayton said, “We are prepared to live with it.”
The Chief Probation Officers of California, an organization whose members stand to see a significantly increased workload as the guardians of pretrial monitoring and supervision for the vast majority of state trial courts, said Thursday it was up to the task.
“After today’s ruling, probation departments throughout the state will continue to work to create programs that eliminate the role of wealth or financial status in pretrial release,” Executive Director Karen Pank said in a statement.
The Supreme Court’s opinion affirmed the socalled Humphrey decision by an appellate court in 2018, which was blocked until last August. The appellate ruling prompted changes to the bail process in courts across the state, and bail reform advocates
said more changes will likely come now that the high court has weighed in.
The case centered on the jailing of a man named Kenneth Humphrey, a retired shipyard worker who spent more than a year behind bars awaiting trial after he was charged with robbing his elderly neighbor in a San Francisco residential hotel for $5 and a bottle of cologne in 2017.
A judge initially set Humphrey’s bond at $600,000 — far more than he could afford, even with a bail bond — after using San Francisco’s bail schedule, a document that assigns defendants a standard bail amount for each criminal charge and for factors such as prior convictions.
Humphrey, now 66 and living in Vallejo, was released from jail following the appellate court’s ruling. The criminal case against him remains unresolved.
The next question, Ball and others say, is how the ruling will play out at the local level given the wide range of attitudes among judges in the state’s 58 counties.
Raj Jayadev, co-founder of the South Bay civil rights organization Silicon Valley De-Bug, said advocates plan to station workers in courtrooms across California to watch hearings and make sure judges are complying with the decision. While Jayadev and other advocates were broadly pleased with the ruling, he said it still gives judges too much authority to decide who can be held before trial.
Ball also noted that judges will have discretion in deciding what constitutes “affordable” bail and gauging the risk a defendant poses to the public, which could lead to more legal challenges — unless the state Legislature steps in and more clearly spells out those processes in the law.
“Judges might disagree on what an acceptable level of risk is,” Ball said. “The court has said, here are the principles, but they don’t have definitive rules.”