Landmark court ruling redefines state’s bail system. What will it look like in SLO County?
The California Supreme Court ruled in a unanimous decision last week that it’s unconstitutional to hold arrestees in jail solely because they can’t afford cash bail, and reactions vary among the San Luis Obispo County legal community.
While local defense attorneys are praising the court’s landmark March 24 decision as long overdue, one local bail bondsman says recent changes in law have already driven down bail amounts for serious crimes, and that the current system in place already ensures that very few people are actually in custody because they can’t afford to bail out.
County officials say they are reviewing the court’s opinion to better understand how it may affect operations at the Sheriff’s Office and Probation Department.
Though the ruling does not outright end the cash bail system, it requires that judges considering a bail sum must now also consider the seriousness of the charges, the defendant’s criminal history and other factors to set a reasonable bail amount that the individual 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 public safety concerns the defendant’s risk of flight, Justice Mariano-Florentino Cuéllar wrote in the decision.
“(Pretrial) detention should be reserved for those who otherwise cannot be relied upon to make court appearances or who pose a risk to public or victim safety,” Cuéllar wrote. “But it’s a different story in practice: 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 — on the accused’s ability to post the sum provided in a county’s uniform bail schedule.”
The opinion concludes: “The common practice of conditioning freedom solely on whether an arrestee can afford bail is unconstitutional.”
Pre-trial detainees suffer a ‘direct grievous loss’ of freedom, court says
Voters rejected a proposed end to the cash bail system last year, rejecting Proposition 25 by a 10-point margin.
Under the system, a person who is arrested would be booked into County Jail on suspicion of a charge or charges, the bail amounts for which were set by a presumptive bail schedule, listed on the San Luis Obispo Superior Court’s website.
Within 72 hours, that person is supposed to appear before a Superior Court judge, who can determine whether to increase, lower or leave the bail amount as is.
The state Supreme Court decision last week upholds an appellate court ruling in the case of Kenneth Humphrey.
Arrested in 2017 and booked into jail on suspicion of first-degree robbery and burglary of an elderly victim, the then-66-year-old 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, based on the presumptive bail schedule and a criminal record from the 1990s. Humphrey challenged that decision to an appeals court.
In the ruling last week, Cuéllar described Humphrey’s challenge as “as simple as it is urgent,” that “no person should lose the right to liberty simply because that person can’t afford to post bail.” The justice wrote that Humphrey’s claims joined a “clear and growing movement” that is reexamining the use of money bail as a means of pretrial detention.
“(Those) incarcerated pending trial — who have not yet been convicted of a charged crime — unquestionably suffer a ‘direct grievous loss’ of freedom in addition to other potential injuries,” Cuéllar wrote.
Ruling is ‘a fundamental shift in the way we treat those accused’
Jeff Stein, who’s worked as a criminal defense attorney in San Luis Obispo County for more than 40 years and has served as past president of the SLO Bar Association and the state’s defense attorneys association, compared the impact of the Supreme Court’s decision on the bail system to the effect Brown v. Board had on segregation.
He said the change represents “a fundamental shift in the way we treat those accused,” and will dramatically revise the way the courts operate moving forward.
“The shift will change the world I’ve occupied spectacularly,” Stein said.
Stein said the change essentially boils down to individualizing the bail process, focusing on specific factors directly related to public safety rather than an arbitrary bail schedule.
Bail is primarily a means to ensure a defendant shows up for court, Stein said. Judges must now consider any less restrictive means available, such as GPS monitors or other types of out-of-custody supervision, he said, to ensure compliance as appropriate.
Among his key takeaways of the ruling, Stein said Friday that it’s notable that all seven of the state Supreme Court’s justices were in agreement in the Humphrey case, a somewhat rare event, but an important alignment in such a consequential decision.
He also pointed out that the court took up the Humphrey case on its own, not because any of the interested parties petitioned them to do so, reflecting the determination of the court to address the issue.
In the ruling, the court discussed the harm that holding someone in jail does in some cases, and called the disadvantages to being held in custody while trying to prepare a defense “immense and profound.”
Cuéllar wrote that studies suggest pretrial detention heightens the risk of losing a job, a home, and custody of a child, and “while correlation doesn’t itself establish causation, time in jail awaiting trial may be associated with a higher likelihood of reoffending, beginning anew a vicious cycle,” the opinion reads.
The burden of custody is not placed solely on the defendant, Stein said, but also shared with the state. The court in its opinion noted that the state bears the cost of housing and feeding arrestees who could be released without any impact on public safety.
On any given day, according to a cited study, nearly a half-million people — none of whom has yet been convicted of a charged offense — sit in America’s jails awaiting trial, the ruling says.
They note that the U.S. Department of Justice estimates that keeping the pretrial population behind bars costs American taxpayers roughly $9 billion dollars per year.
At the same time, the ruling says, bail is more expensive in California, where the median bail amount ($50,000) is more than five times the median amount in the rest of the nation (less than $10,000).
“To say this is a long time coming is a vast understatement,” Stein said.
Steve Rice, one of two managing attorneys at SLO Defenders, which contracts public defender services for the county, said Friday that the ruling is a sound one. He said he was made aware that at least one local judge brought up the decision during a hearing last week.
Rice said that having a judge focus on individual cases and not being guided by a uniform bail menu is a good thing for defendants, who may now be able to secure release and keep a job while their case plays out.
“And sometimes we’re talking zero dollars — sometimes that’s all they can afford,” Rice said.
Bondsman says current system works
Greg Sullivan has been a bail bondsman for 36 years and has owned ABC Bonding in San Luis Obispo for 28 years.
He has been an outspoken critic of recent efforts in California to end the cash bail system as well as other public safety initiatives that reduced certain crimes from felonies to misdemeanors.
He said he’s been closely monitoring activities in the state and how they could change his industry, which he said plays a vital role in the criminal justice system.
Sullivan said Friday that he doesn’t think that the Supreme Court ruling will affect his business too badly, given that ABC Bonding has already had to adjust to decreasing bail amounts for recently reduced crimes, as impacted by 2016’s Proposition 57.
In addition, he said, an emergency “zero bail” schedule implemented in response to the COVID-19 pandemic released many people from jail who otherwise would have remained in pre-trial detention and largely cleared the jail of people who would apply to the Supreme Court ruling.
That emergency order significantly hurt his business, Sullivan said, so much so that he applied for and received economic assistance.
“We were able to right the ship,” Sullivan said. “We’ve just been adapting and adapting.”
A hybrid bail schedule since adopted by the San Luis Obispo Superior Court still allows for defendants facing nonviolent charges to successfully seek release from custody as the pandemic lingers, Sullivan said.
People charged with offenses such as child endangerment and domestic violence are still held in custody due to risks to the victims, but defendants are given reasonable bail amounts given the seriousness of the allegations, Sullivan said.
In recent months, Sullivan said his businesses has been writing fewer bonds, but those bonds have been larger on average. He attributes this largely to the pandemic and an increase in more serious crimes such as domestic violence as people are confined to their homes, as well as other stressors.
Sullivan said the system in San Luis Obispo County is a good one.
“You have a right to bail, and if you can’t bail out then you see a judge within 72 hours and the judge makes that determination,” he said. “We have a good system.”
He said that he’s been critical of the effects of Prop. 57, which he said has led to people committing lower level offenses, being immediately booked and released from jail, then traveling to another county and re-offending, never showing up to court.
“Burglary, car theft, sales of meth and heroin ... as a community member, I don’t like that a person can steal a car and be released hours later,” Sullivan said. “It’s unfortunate.”
He said that, had the Supreme Court ruling come prior to recent changes in law and COVID-19, the impact to the bail industry would have been much more significant.
“We’re already swimming in that pool,” he said.
How will this affect SLO County?
San Luis Obispo County officials say its too soon to predict how this change in bail procedure will affect operations in the courts and jail.
Stein said that he expects the ruling will have a “massive” effect on the Sheriff’s Office, and will by its nature decrease the number of people in pre-trial custody at San Luis Obispo County Jail.
Asked about that, and how jail operations will be affected, Sheriff’s Office spokesman Tony Cipolla wrote in an email Friday that since the decision was just handed down, the agency is in the process of working with county Probation, the District Attorney’s Office, and San Luis Obispo Superior Court to determine what this means for the county.
District Attorney Dan Dow wrote in an emailed statement Monday that his office’s prosecutors “will always ask the court for a sufficient amount of bail, appropriate conditions of release, or a custody order that will best ensure the safety of the victim and the public from dangerous criminals.”
“Our probation department is leading the local effort to implement a risk assessment tool that will assist judges in deciding what order is most appropriate,” Dow wrote. “No risk assessment is perfect or foolproof — we will do the best we can with this new guidance from the Supreme Court regarding bail.”
San Luis Obispo Sueprior Court CEO Michael Powell did not have information Monday about whether local Superior Court judges have discussed the ruling or whether the court will be issuing any direction to local attorneys and court staff.
