Court: Judges must weigh ability to pay bail

The California Supreme Court ruled that judges must consider suspects’ ability to pay when they set bail.

The California Supreme Court ruled Thursday that judges must consider suspects’ ability to pay when they set bail, essentially requiring that indigent defendants be freed unless they are deemed too dangerous to be released awaiting trial.

“The common practice of conditioning freedom solely on whether an arrestee can afford bail is unconstitutional,” the justices said in a unanimous decision.

Judges can require electronic monitoring, regular check-ins with authorities or order the suspect to stay in a shelter or undergo drug and alcohol treatment, Associate Justice Mariano-Florentino Cuéllar wrote on behalf of the court — conditions that “in many cases protect public and victim safety as well as assure the arrestee’s appearance at trial.”

However, “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.”

There are times when protecting the community means the suspect cannot be released at all, they said, but then “a court must first find by clear and convincing evidence that no condition short of detention could suffice.”

The decision comes after voters in November rejected a state law that would have ended California’s cash bail system entirely by substituting risk assessments for every suspect, and after months when a judicial order set bail at zero for lowerlevel offenses during the coronavirus pandemic. The court’s ruling allows cash bail, so long as defendants can afford it.

The justices adopted the same argument that state lawmakers used in passing the 2018 law ending cash bail, and that is driving new proposed legislation that would set bail at $0 for misdemeanors and low-level felonies.

“Hallelujah!” Democratic state Sen. Robert Hertzberg, who is backing both reform efforts, said in a statement. “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.”

While it considered the case, the high court in August took the extraordinary step of requiring California judges to follow a lower court ruling and set bail amounts based on what suspects can afford to pay.

Bail is money or property that can be forfeited if suspects fail to appear for trial. If the suspect can’t afford bail, judges can consider alternatives like releasing them on their own recognizance, potentially with restrictions like ankle monitors.

Previously, judges set bail based on suspects’ criminal records and pending charges. Critics said that let wealthy suspects go home to prepare for trial while lower-income defendants stayed locked up, a system they said encouraged some innocents to plead guilty to get out of jail.