State high court limits cash bail system
When a judge determines that cash bail is necessary, the judge “must consider the arrestee’s ability to pay the stated amount of bail.”
Justice MarianoFlorentino Cuéllar on the 70 ruling
California’s cash bail system for pretrial release, preserved by the voters in November, was cut back substantially Thursday by the state Supreme Court, which said judges in most cases must consider a defendant’s ability to pay before setting bail in any amount.
“No person should lose the right to liberty simply because that person can’t afford to post bail,” Justice Mariano-Florentino Cuéllar said in a 70 ruling in the case of a San Francisco man held in jail for a year on a robbery charge.
Newly arrested defendants can often be released safely with supervision by electronic monitoring, regular checkins with a pretrial case manager and community housing, as well as drug and alcohol treatment, Cuéllar said. When a judge determines that cash bail is necessary, he said, the judge “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.”
And before holding a defendant without bail, Cuéllar said, the judge must find by “clear and convincing evidence” that pretrial detention is necessary to protect the public or to prevent the defendant from fleeing before trial.
California law allows judges to set bail based on the seriousness of the charges and the defendant’s record, a system that has kept hundreds of thousands of lowincome defendants in jail awaiting trial while those who could afford bail were released.
In 2018, state lawmakers approved legislation, SB10, to abolish the cash bail system
and allow judges to decide, for all but the most serious crimes, whether defendants should be freed without bail while awaiting trial. But bail bond companies blocked the measure from taking effect in 2019 by qualifying a referendum for the ballot, spending $3 million to collect signatures, and last November 55% of the voters rejected Proposition 25, which would have put the nobail law into effect.
Bail bond companies’ chief source of income is the nonrefundable 10% fee they charge to defendants for posting bail.
The court case involved a San Francisco man, Kenneth Humphrey, now 66. He is accused of entering the apartment of a 79yearold man who lived in the same building in May 2017, threatening to put a pillowcase over his head and stealing $5 and a bottle of cologne.
A judge initially set bail at $600,000, based on the charge and Humphrey’s record, then lowered it to $350,000. But he remained in jail until May 2018, then was freed without bail after the First District Court of Appeal said judges must consider defendants’ finances in setting bail. His charges are still pending.
Humphrey was “thrilled” by the ruling, San Francisco Public Defender Mano Raju told reporters. He said Humphrey, since his release, has been a mentor and counselor to inmates in similar circumstances.
In August, the state Supreme Court ordered all trial judges in California to follow the appeals court’s standards on bail consideration while Humphrey’s case was under review. But defense lawyers said compliance has been mixed at best, and Thursday’s ruling should send a stronger message against unnecessary detention.
“There was a lot of disagreement among judges” about the meaning of the appellate ruling, said Alec Karakatsanis of the nonprofit Civil Rights Corps, who argued the case before the Supreme Court. “We’ve got a long way to go.”
Thursday’s ruling did not go as far as SB10, as the court allowed judges to set bail in some cases. But those situations are likely to be much less frequent when judges must consider a defendant’s financial resources, effectively barring cash bail for many lowincome arrestees. And the court’s requirement of “clear and convincing evidence” will make it harder for judges to hold defendants without bail unless a defendant is charged with murder or another lifesentence crime.
“Cash bail will be much less common” under the ruling, said Lara Bazelon, a University of San Francisco law professor who filed arguments for a group of legal scholars opposing the current bail system. “Trial judges will have to go to much greater lengths to justify detaining someone.”
She said the bail system also has the effect of coercing many people into accepting guiltyplea agreements that allow their release.
“A lot of people plead to things they didn’t do just to get out,” many of them racial minorities, Bazelon said.
On the other side, attorney Kymberlee Stapleton of the Criminal Justice Legal Foundation, which urged the court to uphold the current system, said increasing pretrial release also increases potential dangers to crime victims and the public.
‘They can’t be 100% sure those conditions (of supervision) are going to work,” Stapleton said.
She said judges already had authority to release defendants without bail based on their record and the charges against them.
But David Quintana, lobbyist for the California Bail Agents Association, said the ruling was “thoughtful and fair to all sides.”
On a typical day, Cuéllar said in the ruling, nearly half a million people sit in jails across the United States awaiting trial. In California, he said, a 2015 study found that the typical bail amount was $50,000, more than five times the national average.
“The accused retains a fundamental constitutional right to liberty,” Cuéllar said.
He said the state’s proper concern in setting conditions of pretrial release “is not to punish — it is to ensure the defendant appears at court proceedings and to protect the victim, as well as the public, from further harm.”
The case is In re Kenneth Humphrey, S247278.