Prop 25 failed, but state’s fight over cash bail far from over
California voters last week rejected a proposition to abolish the state’s cash bail system. But no one — not activists who say keeping people behind bars because they can’t afford to post bail is unjust, nor the bail bonds industry that poured millions of dollars into the campaign to defeat the ballot measure — believes the fight is over.
Instead the focus is shifting to the Supreme Court of California, where civil rights groups will argue that it is unconstitutional to continue a system that favors people who have money and punishes those who don’t. That case could allow the court’s seven justices to order their own reworking of the bail system, perhaps as soon as the next several months.
“The question is going to be: What is the appetite of the California Supreme Court?” said David Ball, a Santa Clara University law professor who opposes money bail. “The bail issue is alive and well.”
At the center of the case is Kenneth Humphrey, a San Francisco retiree who was held in jail because he couldn’t post the $600,000 bail a judge assigned him. His charge? Robbing his elderly neighbor in a residential hotel for $5 and a bottle of cologne in May 2017. The amount was later lowered to $360,000, but it was still far more than he could afford, even with a bail bond.
The San Francisco Public Defender’s Office and nonprofit Civil Rights Corps challenged Humphrey’s bail, and an appellate court sided with them in 2018. The ruling upended the state’s bail system, requiring judges
to consider a defendant’s ability to pay when setting bail, as well as whether they could safely be released without putting up money. After a year behind bars, Humphrey was freed.
The state Supreme Court agreed to review the case next. But the proceedings were essentially put on hold because California’s Legislature at the time was separately considering a law that would have eliminated the cash bail system and rendered the case moot.
In the more than two years since, lawmakers passed SB10 abolishing cash bail, and then- Gov. Jerry Brown signed it into law in August 2018. It was supposed to take effect in October 2019, but a challenge from the bail industry blocked it pending the results of Proposition 25, a referendum to uphold the new law.
With the measure’s failure, David Ettinger, an appellate lawyer who tracks the state Supreme Court, said the justices could move quickly on the Humphrey case, hearing oral arguments perhaps as soon as the first week of December. The court typically issues a ruling within 90 days of oral arguments.
“It would not be a surprise to see it on the December calendar,” Ettinger said.
Civil rights groups and activists have long abhorred the cash bail system, saying it allows wealthy defendants to walk free and await trial from home while poor, disproportionately Black and Latino defendants remain behind bars. They stay in jail not because they pose a threat to the public but because they can’t scrape together enough money to get out.
Critics, including some law enforcement groups and the bail bonds industry, say requiring someone to post bond is the best way to ensure they return to court for the rest of their case.
But while the idea of eliminating cash bail has moved firmly into the mainstream of the criminal justice reform conversation — President-Elect Joe Biden endorsed it during his campaign — there is little consensus on what ought to replace it.
Prop. 25 and SB10 would have created a new system releasing most misdemeanor defendants without bond. In more serious cases, the legislation gave judges, aided by algorithms meant to assess the risk each defendant poses to their community, substantial authority in deciding who would be released.
That plan outraged some longtime advocates for abolishing cash bail, who said the algorithms would only replicate the injustice of the existing system. Several pulled their support for the legislation and actively opposed the ballot measure.
Now advocates see a new opportunity in the Humphrey case.
“I don’t think we needed Prop 25. to defeat the bail bonds industry — Humphrey can do it,” said San Francisco Public Defender Mano Raju, whose office was one of those that soured on the risk assessment system.
There are signs the justices are open to arguments against cash bail: Chief Justice Tani Cantil- Sakauye worked with Brown and the Legislature in the crafting of SB10 and after its passage called money bail “outdated, unsafe, and unfair.” And in August, the Supreme Court ordered that the 1st District Court of Appeal’s ruling in Humphrey’s favor be made binding, which the high court had initially blocked from going into effect while the case was under review.
Raju said he hopes the Supreme Court embraces that ruling, which, while not eliminating the cash bail system entirely, aims to ensure people are not kept behind bars solely because they cannot afford bail.
If the Supreme Court doesn’t take meaningful action, Raju said, “We can do it with better legislation that doesn’t rely on these harmful algorithms.”
Jef f Clay ton, executive director of the American Bail Association, said he expects the justices to scrutinize bail schedules, which assign a default bail amount for each criminal charge, perhaps moving to lower the bail amounts on those schedules or eliminate them entirely. Such changes, Clay ton said, “would not be fatal to bail.”
Clayton, whose organization sponsored the campaigns to challenge SB10 and defeat Proposition 25, said the 56 percent of voters who opposed the measure were sending a message that they don’t want to throw out the option of money bail altogether.
“People did not want to give up their right to bail out their friends and family,” Clayton said. “I don’t think going to the ‘ no money bail’ system is going to happen — that (was) the point of the referendum.”
Critics, including some law enforcement groups and the bail bonds industry, say requiring someone to post bond is the best way to ensure they return to court for the rest of their case.