For years, California lawmakers and judges have tried to reform the state’s bail system to reduce discrimination against the poor. On Thursday, four months after voters rejected such a reform, the California Supreme Court ruled that it is unconstitutional to require defendants to stay behind bars simply because they cannot pay bail.
In a unanimous decision, the state’s highest court told judges to favor pre-trial release and consider a person’s ability to pay before setting bail.
Thursday’s decision is likely to result in many more people being released without bail before going to trial. Judges can keep criminal defendants in prison only when “clear and convincing” evidence shows that there is no other way to protect the public and ensure the defendants’ return to appear in court.
“The common practice of conditioning freedom only on the fact that the detainee can pay bail is unconstitutional,” Minister Mariano-Florentino Cuéllar wrote to the court, ruling that it violated state and federal protections.
“Other release conditions – like electronic monitoring, regular check-ins with a pre-trial case manager, housing or community shelter, and drug and alcohol treatment – can, in many cases, protect the safety of the public and the victim, as well as how to ensure the detainee’s presence at the trial. “
The decision represents a partial victory for criminal justice advocates and a setback for California’s bail industry. A national coalition of groups of bailout agencies sponsored the November electoral initiative, Proposal 25, to thwart an unguarded state law that it opposes.
Albert Ramirez, general counsel for the Golden State Bail Agents Assn., Said the bail-out law rejected by voters would have killed the industry, but it could survive the requirements set by the California Supreme Court.
Although profits are low, “we can live with that,” said Ramirez.
Those who can post bail will continue to post it, and bail values for others may now decrease as a result of the decision, he said. California bail has been “ridiculously high,” he said, and the industry recognizes that.
In the past, California judges based bail decisions on a set schedule and the defendants’ criminal records and the seriousness of the accused crimes, without considering whether the defendant could pay bail. This left thousands of defendants behind bars because of their financial difficulties.
Bail schedules will remain and people arrested may continue to post the required amounts, Ramirez said. But the accused are entitled to a bail hearing within 48 hours of their arrest and can argue to a judge that they cannot pay the amounts set.
Now, Ramirez said, “you can leave for free after 48 hours”.
Ramirez said he hoped the decision would prevent state lawmakers from making further changes to the bail system, but that hope seemed unlikely to materialize.
State Senate Majority Leader Bob Hertzberg (D-Van Nuys) said on Thursday that he would continue to promote a bill that would set zero bail for minor offenses and reduce the rate of return for bail companies.
He applauded the court’s decision, saying it would be incorporated into the legislation, but argued that lawmakers should do more “to take the usury out of the system”.
“We can make it clear that people accused of low-grade nonviolent crimes cannot be detained before the trial,” he said in an interview.
Thursday’s decision upheld the San Francisco state appeals court’s decision that allowed Kenneth Humphrey, a retired shipyard worker, to be released with an ankle monitor for not being able to post bail.
Humphrey faced charges of theft and theft in San Francisco after being accused in 2017 of stealing less than $ 10 and a bottle of cologne from a neighbor. Humphrey was 63 at the time, neighbor 79.
Humphrey had a criminal record and a first instance judge initially set the bail at $ 600,000. The judge eventually reduced it to $ 350,000, which Humphrey was still unable to pay. Bail companies require defendants to pay up to 10% of the bail amount, even when defendants appear in court. Humphrey did not have $ 35,000 to obtain bail.
In challenging the bail decision, lawyers for Humphrey, who is black, presented a 2013 study of the San Francisco criminal justice system that concluded that black adults were 11 times more likely than white adults to be arrested before the trial. judgment. After the appeals court ruled in his favor, Humphrey was released under electronic monitoring and an order to stay away from the victim and participate in a residential substance abuse treatment program for the elderly.
At the request of the then-Atty. Gen. Xavier Becerra, the California Supreme Court in August made the court’s mandatory appeal decision to the lower courts, requiring them to consider how much the defendants could pay before setting bail. Thursday’s decision means that the decision will remain the law.
The court cited studies that suggest that pre-trial detention increases the risk of losing a child’s job, home and custody. The court said jail time awaiting trial may also be associated with an increased likelihood of a repeat offense, “starting a new vicious cycle”.
Six California counties – Alameda, Fresno, Orange, Sacramento, San Bernardino and San Francisco – spent $ 37.5 million over a two-year period arresting people who were never charged or whose charges were later dropped, the court said, citing a Human Rights Watch report.
The court also noted that defendants awaiting trial are arrested more often in large urban California counties than elsewhere in the United States, a fact attributed to the state’s high cost of bail. The average bond in California is $ 50,000, more than five times the average in the rest of the country, according to the decision.
Some other states have already abolished cash bail for most cases, and Illinois this year has completely abolished cash bail.
California Supreme Court President Tani Cantil-Sakauye has long advocated an end to monetary bail for defendants who cannot pay it. In 2017, she appointed a group composed mainly of judges to study the matter and recommended that the cash bail be replaced by a risk assessment and supervision system.
The Legislature passed a bill reflecting these recommendations in 2018 and then at Gov. Jerry Brown enacted the law. The law has made some defendants – those charged with capital crimes or domestic violence and others with recent serious crimes – ineligible for pre-trial freedom.
The day after Brown signed the law, the bail industry launched a signature campaign and qualified a referendum that suspended the law until voters could consider it. The multi-billion dollar bailout industry has about 2,500 agents in California.
Liberals, who have long argued that cash bail discriminates against the poor, were divided over the electoral measure. It relied on risk assessments or algorithms to make pre-trial release decisions. Some feared that the measure would lead judges to postpone risk assessment scores that were racially biased rather than making individual assessments.
The division produced an unlikely but informal alliance – the bail industry, members of law enforcement and the American Civil Liberties Union of Southern California and Human Rights Watch – that led to the end of Proposition 25.
Jennifer Friedman, head of the California Public Defenders Association, said she hoped Thursday’s decision would trigger “a major change at sea and that no one will be kept in custody unless it is demonstrated by clear and convincing evidence that there is no alternatives.”
While judges may establish conditions for release that include measures such as ankle monitors, Friedman said he was “cautiously optimistic” that such practices will not become commonplace and “will simply transform the for-profit bail industry into electronic surveillance for purposes profitable industry. “