California Supreme Court rules cash bail unconstitutional for defendants who can’t afford it
The California Supreme Court ruled Thursday that defendants in the state cannot be detained in jail while awaiting trial simply because they cannot afford bail.
“The common practice of conditioning freedom solely on whether an arrestee can afford bail is unconstitutional,” Justice Mariano-Florentino Cuéllar wrote in the decision.
The unanimous ruling doesn’t outright ban cash bail, but says judges must consider factors such as the seriousness of charges and past criminal history and then use those factors to set bail at an amount the defendant can afford.
A court may detain an arrestee on money bail “only if it first finds, by clear and convincing evidence, that no nonfinancial condition of release can reasonably protect” against concerns like public safety or flight risk, Cuéllar wrote.
Cuéllar also wrote that pre-trial detention “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.”
Voters rejected an end to cash bail last year, rejecting Proposition 25 by a 10-point margin.
State Sen. Bob Hertzberg, D-Los Angeles, who opposes cash bail and authored the bill that turned into Proposition 25, praised Thursday’s ruling but said there the bail system still needs additional reform.
“There’s a need for this legislation,” Hertzberg said. “We’ll incorporate the language of the Supreme Court into our bill.”
Hertzberg called the current bail bond industry a form of “predatory lending.”
He said the primary argument against Proposition 25 was about its use of an algorithm to determine whether someone should be held or released.
“What we’re taking now is a different approach,” he said.
Hertzberg says it is important that the court recognized the cost of housing and feeding inmates.
“People think if you don’t have bail you’re just going to open up the jail cells and let people go. Farthest from the truth, that’s not what’s happening.”
Hertzberg says people aren’t skipping out on court hearings on purpose.
“They’re skipping court appearances because their kid is sick or they forgot the date,” he said. “We have very simple ways, inexpensive ways, to make sure that people show up in court.”
The state Supreme Court decision upholds an appellate court ruling in the case of Kenneth Humphrey. Arraigned in 2017, Humphrey sought release with no money bail due to his age, unemployment and financial status.
A San Francisco trial court ordered Humphrey’s bail set at $600,000. Humphrey petitioned to an appeal court.
“Requiring money bail as a condition of release at an amount the accused cannot pay, (Humphrey) claimed, is nothing less than the functional equivalent of a pretrial detention order — which can be justified only if the state establishes a compelling interest in detaining the accused and demonstrates that detention is necessary,” Cuéllar summarized.
The superior court in that case conducted a new bail hearing and ordered Humphrey released pending trial with no monetary bail, but with an ankle monitor.
Hertzberg said there is a “placeholder” in his current bail reform bill, SB 262, for the outcome of the Humphrey decision and they will adjust the bill accordingly.
This story was originally published March 25, 2021 at 12:35 PM with the headline "California Supreme Court rules cash bail unconstitutional for defendants who can’t afford it."
