Tsunami map adds to danger zones

This week’s state Supreme Court decision on cash bail could fundamentally alter the state’s criminal justice system — purportedly barring anyone from being held in jail before trial solely because they don’t have enough money to get out.

But it’s unlikely to throw open the jailhouse doors anytime soon for many of the 44,000 people across California who are behind bars on any given day, despite not being convicted and sentenced for a crime.

“It makes very clear you can’t detain someone just because they can’t pay,” said Natasha Minsker, a Sacramento attorney and consultant who focuses on criminal justice issues. “It leaves many questions unanswered.”

The use of bail has been a major focus of criminal justice reform efforts here and across the country. Last year, voters rejected Prop. 25, which would have ended the use of cash bail. The Supreme Court opinion issued Thursday says judges must consider a defendant’s ability to pay when setting bail. The opinion also said judges can consider public safety and whether a defendant is a flight risk when making pretrial detention decisions.

But the procedure for making such determinations is unclear.

“(S)triking the proper balance between the government’s interests and an individual’s pretrial right to liberty requires a reasoned inquiry, careful consideration of the individual arrestee’s circumstances, and fair procedures,” Justice Mariano-florentino Cuéllar wrote in the opinion. “But…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.”

Those future cases will take time.

For now, defense lawyers will need to decide if they should be filing motions for bail reconsideration in existing cases. Prosecutors will need to figure out what this means for the bail amounts they request from judges. Courts will need to figure out processes for determining when a defendant can afford bail. And judges — who sometimes set exorbitant bail amounts, particularly in cases where the charges are serious — will need to figure out the constitutional limits on when they can order a defendant held without bail for public safety reasons, or out of fear they won’t come back to court.

“Inevitably they’re going to exceed those limits” as the courts stumble through, Minsker said. And that will mean more litigation and, ultimately, decisions clarifying when criminal defendants can be held behind bars before trial.

Even with the ambiguity, criminal justice reform advocates and public defenders hailed the decision.