California’s top court ends cash bail for some defendants
SAN FRANCISCO — In a major ruling affecting criminal justice across 58 counties, the California Supreme Court ruled Thursday that the state cannot keep criminal defendants behind bars simply because they cannot afford to post bail pending their trial.
The unanimous decision by the California Supreme Court comes four months after 55% of voters refused to end cash bail at the ballot box. While a hit to the state’s bail industry, Thursday’s court ruling was not as sweeping as some expected, and a lawyer for the industry said it could live with it.
Justice Mariano-Florentino Cuéllar, writing for the high court, said the state’s current bail scheme violates the Constitution.
“Whether an accused person is detained pending trial often does not depend on a careful, individualized determination of the need to protect public safety, but merely — as one judge observes — the accused’s ability to post the sum provided in a county’s uniform bail schedule,” Cuéllar wrote.
If a defendant poses little risk of harming others or failing to return to court, a judge may release him or her with appropriate conditions, the ruling said. If the defendant poses a flight risk or might commit other crimes, the trial court should consider “whether nonfinancial conditions of release may reasonably protect the public and the victim or reasonably assure the arrestee’s presence at trial.”
Judges may still conclude that money bail is reasonable, but they must consider the defendant’s ability to pay, a long with the seriousness of the charged offenses and the person’s criminal record, and set bail in an amount the person can afford, Cuéllar wrote.
Courts also can keep defendants behind bars if judges find by “clear and convincing” evidence that there is no other way to protect public safety and prevent a flight a risk, the court said.
A national coalition of bail agency groups sponsored the November ballot initiative, Proposition 25, to head off a state no-bail law it opposed. Albert Ramirez, general counsel of the Golden State Bail Agents Association, said the no-bail law voters rejected would have killed the industry, but it can survive with the requirements set by the California Supreme Court.
Those who can afford bail will continue to post it, and bail amounts for others may now come down as a result of the ruling, he said. Bail in California has been “ridiculously high,” he said, and the industry recognizes that. He said he hoped the ruling would deter the Legislature from trying to end money bail altogether.
Though the decision may reduce profits for the industry, “we can live with it,” he said.
In the past, California judges have based bail decisions on a set schedule and defendants’ criminal records and the serious of the charged offenders, without considering whether the accused could afford bail. That left hundreds of thousands of defendants behind bars before their trials because they could not afford to post bail.
Bail schedules will remain, and people who are arrested can continue to post the required amounts, Ramirez said. But the accused are entitled to bail hearings within 48 hours after arrest, and they now can argue to a judge that they cannot afford the set amounts.
Now “you may get out for free after 48 hours,” Ramirez said.
The decision upheld a ruling by a San Franciscobased state court of appeal panel that allowed Kenneth Humphrey, a retired shipyard laborer, to be released with an ankle monitor because he could not afford bail.
Humphrey faced robbery charges in San Francisco after being accused in 2017 of stealing $5 and a bottle of cologne from a neighbor. Humphrey was 63 at the time, the neighbor, 79.
Humphrey had a criminal record, and a trial judge initially set bail at $600,000. The judge eventually reduced it to $350,000, which Humphrey still could not afford. Bail bonds companies require defendants to pay up to 10% of the bail amount even when the defendants show up to court. Humphrey did not have the $35,000 to obtain bail.
At the behest of then Attorney General Xavier Becerra, the California Supreme Court in August made that ruling binding on trial courts, requiring them to consider how much defendants could afford before setting bail. Thursday’s decision means that ruling, now refined by the Supreme Court, will remain the law.
Chief Justice Tani Cantil-Sakauye has long championed ending monetary bail for defendants who can’t pay it. In 2017, she appointed a group consisting mostly of judges to study the issue, and it recommended money bail be replaced with a system of risk assessment and supervision.
The Legislature passed a bill reflecting those recommendations in 2018, and then-Gov. Jerry Brown signed it into law. The law made some defendants — those accused of capital crimes or domestic violence and others with recent serious felonies — ineligible for pretrial release.
A day after Brown signed the law, launched a signature drive and qualified a referendum that put the law on hold until voters could consider it. The multibillion-dollar bail industry has about 2,500 agents in California.
Liberals, who have long argued that cash bail discriminates against the poor, were divided over the ballot measure. It relied on risk assessments or algorithms to make pretrial release decisions. Some liberals also worried the measure gave too much discretion to judges, and some criminal defense lawyers worried that algorithms to be used to assess a defendant’s risk of flight or re-offending might themselves be biased and lead to defendants unnecessarily being kept in jail.