Landmark state ruling on cash bail in jailings

Judges directed to expand use of non-jail alternatives

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 on publicsafety 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 MarianoFlorentino 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.”

Judges can order a defendant held behind bars without the option of bail if they believe the person to be a safety risk. But the Supreme Court ruled that judges must find by “clear and convincing evidence that no condition short of detention could suffice.”

“This is a gigantic momentous decision,” said David Ball, a Santa Clara University law professor who specializes in criminal procedure. “You can no

longer get around the decision about detaining someone on the basis of public safety by setting an unaffordable bail.”

Ball said he anticipates in-court detention arguments will shift focus away from bail and toward “discussions of public safety and what’s going to be the forthcoming guidance of what risks count and what don’t.”

“There is nothing that changes about the dangerousness analysis,” he said. “If someone is actually coming to get you, district attorneys should be able to prove that.”

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 high court’s opinion is the culmination of a years-long battle over California’s cash bail system, in which people who have been charged with crimes but not convicted must put up money to secure their release, often with the help of a bail bonds company.

Opponents of cash bail have long argued the system can mean poor defendants who pose little risk to society, and are innocent in the eyes of the law, can wind up behind bars for months or years because they don’t have enough money to bail out. In recent years, those advocates have been joined by top Democratic politicians, including President Joe Biden, in calls to abolish cash bail entirely.

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 Supreme Court’s decision Thursday does not abolish the cash bail system. But it affirmed the 2018 “Humphrey decision” from the 1st District Court of Appeal, which found judges must consider a defendant’s means when setting bail and must factor in whether they can be safely released without putting up any cash. The high court granted review of the Humphrey case on its own motion in 2018.

The Supreme Court put the appellate panel’s decision into effect last August, after initially blocking it pending review. That move prompted changes to the bail process in courts across the state that opponents of the cash bail system such as the San Francisco Public Defender’s Office, which brought the case to the Supreme Court along with the nonprofit Civil Rights Corps, said made the process fairer.