Financial status now part of state bail system

The state Supreme Court is requiring trial judges throughout California to consider a defendant's financial status when setting bail and to avoid keeping people in jail before trial because they cannot afford to pay for their release.

At the request of Attorney General Xavier Becerra, the court on Wednesday reinstated a January 2018 decision by a state appeals court in San Francisco as a binding precedent for trial courts statewide while the high court reviews the case. The ruling requires judges to take a defendant’s finances into account when deciding whether, and how much, the defendant must pay to be freed on bail.

“This is a critical step forward for fairness in our bail system,” Becerra said in a statement.

California voters could go a step further in November if they approve Proposition 25. That measure would eliminate the bail system and instead require a judge to decide whether a defendant could be released safely, with monitoring, based on the seriousness of the charges and the judge’s assessment of the risk the defendant posed. Those charged with capital crimes or domestic violence, and those with recent serious

or violent felony convictions, would be ineligible for pretrial release.

The Legislature and Gov. Jerry Brown approved the measure in 2018 and it was scheduled to take effect last October. But it was put on hold when bail bond companies gathered enough public signatures to qualify a referendum for the Nov. 3 ballot.

The companies, which collect 10% fees on bonds they issue, say the system promotes safety by giving defendants an incentive to appear in court or face further charges and financial penalties. Opponents of the bail system say it allows the rich to buy their way out of jail and has no proven safety benefits.

San Francisco, meanwhile, has eliminated bail for most newly arrested defendants accused of misdemeanors or nonviolent felonies, in a settlement of a federal lawsuit. The city’s system will be largely preempted if voters approve Prop. 25.

The San Francisco appellate ruling that now has statewide effect involved Kenneth Humphrey, a retired shipyard worker accused of entering the apartment of a 79yearold man who lived in the same apartment building in May 2017, threatening to put a pillowcase over his head and stealing $5 and a bottle of cologne. A judge initially set his bail at $600,000, based on the charges and Humphrey’s record, then lowered it to $350,000, an amount Humphrey still could not afford.

In its January 2018 ruling, the First District Court of Appeal ordered the judge to determine how much bail Humphrey could afford and whether he could be safely released without bail. Defendants cannot be kept in custody solely because they lack financial resources, Presiding Justice J. Anthony Kline said in the 30 decision.

The state Supreme Court granted thenDistrict Attorney George Gascón’s request to review the ruling in May 2018, removing it from the books as a precedent for Superior Court judges to follow. But Becerra, an opponent of the cash bail system, asked the court last week to use its authority to reclassify the appellate decision as a statewide precedent until the high court issues its own ruling.

He said the “unprecedented impacts” of the coronavirus call for measures to keep people out of jail if they can be released safely. The court — whose chief justice, Tani CantilSakauye, has also criticized the bail system — complied Wednesday without comment or any recorded dissent.

Humphrey, 64, was freed without bail in May 2018 after agreeing to ankle monitoring and 24hour detention at a San Francisco drug and alcohol treatment program for seniors. He is awaiting trial.