California Court: Judges Must Weigh Ability to Pay Bail
The California Supreme Court ruled last Thursday that judges must consider suspects’ ability to pay when they set bail, essentially requiring that indigent defendants be freed unless they are deemed too dangerous to be released awaiting trial.
“The common practice of conditioning freedom solely on whether an arrestee can afford bail is unconstitutional,” the justices said in a unanimous decision.
Judges can require electronic monitoring, regular check-ins with authorities or order suspects to stay in shelters or undergo drug and alcohol treatment, Associate Justice Mariano-Florentino Cuéllar wrote on behalf of the court — conditions that “in many cases protect public and victim safety as well as assure the arrestee’s appearance at trial.”
However, “where a financial condition is nonetheless necessary, the court 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.”
The decision comes after voters in November rejected a state law that would have ended California’s cash bail system entirely by substituting risk assessments for every suspect, and after months when a judicial order set bail at $0 for lower-level offenses during the coronavirus pandemic. The court’s ruling allows cash bail, so long as defendants can afford it.
“It’s going to be a big change in the way the system works,” American Bail Coalition Executive Director Jeff Clayton said on behalf of California’s bail industry, noting that it is similar to ruling by the Nevada Supreme Court. “The lens of due process is going to be on every bail, because prosecutors are going to have to prove, by clear and convincing evidence, a flight risk or danger” if they seek to keep a lower-income suspect in custody.
There will be fewer bails set, and at lower levels, though the impact on the bail industry is uncertain. Also uncertain is the effect on public safety, Clayton said, because prosecutors can still argue for detaining those they think are dangerous or likely to flee.
The justices cited the same unfairness concerns that led state lawmakers to pass the 2018 law that would have ended cash bail, and that is driving new proposed legislation to set bail at $0 for misdemeanors and low-level felonies. The ruling and the pending legislation “go hand in glove” because the Legislature must now decide which alleged crimes should require $0 bail, said Democratic state Sen. Robert Hertzberg, who is leading reform efforts.
Bail is money or property that can be forfeited if suspects fail to appear for trial. Previously, judges set bail based on suspects’ criminal records and pending charges.
The decision was hailed by reform groups, while the California District Attorneys Association didn’t object and said prosecutors have long felt there should be thoughtful reform, including on the financial issue.
The high court’s ruling came in the case of 66-year-old Kenneth Humphrey of San Francisco, who was jailed for more than eight months because he couldn’t post $350,000 bail on charges of stealing $5 and a bottle of cologne from a neighbor in a senior housing complex in May 2017.
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