State Supreme Court Ruling Curtails Cash Bail — But Doesn’t Abolish It

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A bail bonds company across from the Hall of Justice in San Francisco on Oct. 28, 2020. (Beth LaBerge/KQED)

The state Supreme Court dealt a blow Thursday to California’s reliance on cash bail, ruling that judges can’t hold people before trial just because they can’t afford to pay for their release.

The court’s unanimous opinion finds that judges can’t simply rely on pre-determined bail amounts that functionally keep the less affluent behind bars, and concluded “that our Constitution prohibits pretrial detention to combat an arrestee’s risk of flight unless the court first finds, based upon clear and convincing evidence, that no condition or conditions of release can reasonably assure the arrestee’s appearance in court.”

The ruling is the latest step in a several-year struggle in California and nationally to upend the use of bail, which the court found often results in “wealth-based detention” that violates defendants’ equal protection and due process rights.

University of San Francisco law professor Lara Bazelon said the ruling is potentially a “watershed” moment that enforces a defendant’s presumption of innocence.

“Grounding it firmly in the constitution makes it very clear that this is a right that is fundamental and it must be respected in trial courts in every part of the state,” she said. “That’s important because we were getting disparate outcomes depending on who the DA was and what kind of jurisdiction the person was in.”

Judges must now consider whether other requirements — such as electronic monitoring, pretrial check-ins or addiction treatment — can reasonably ensure a defendant won’t reoffend or skip court. And while judges may still impose bail, it can only be set at an amount the defendant can afford.

Justices made the ruling in the case of Kenneth Humphrey, a now 66-year-old Black man who faced $350,000 bail in 2017, when he was charged in San Francisco with robbery after taking $5 and a bottle of cologne from a neighbor. Humphrey’s public defender argued in court that he couldn’t afford that bail, and was held in jail unconstitutionally.

“Humphrey asks whether it is constitutional to incarcerate a defendant solely because he lacks financial resources,” the opinion says. “We conclude it is not.”

The opinion written by Associate Justice Mariano-Florentino Cuéllar cites research finding that large urban counties in California incarcerate people pretrial at higher rates than elsewhere in the country. And in this state, bail isn’t cheap. The median bail amount in California is $50,000, over five times the national median.

“Today’s historic decision affirms that people like our client Kenneth Humphrey, who bravely fought for his pretrial freedom, can no longer be locked up in jail simply for being poor and when they pose no threat to public safety," said San Francisco Public Defender Mano Raju in a statement.

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The ruling is distinct from a recent failed attempt by state legislators to completely eliminate the use of cash bail in California.

Senate Bill 10, signed into law in 2018, was overturned by referendum and subsequently rejected by voters in the last election. The law split progressives, many of whom thought that it left too much discretion in the hands of trial judges to continue to jail people awaiting trial.

State Sen. Robert Hertzberg, D-Van Nuys, one of the authors of SB 10, said Thursday that he is “over the moon” with the high court’s ruling. He said judges can no longer rely on predetermined bail amounts, and must now “look at each person who’s sitting before that judge in the eye, looking at their facts, and making a determination instead of somebody being subject to a price list for their liberty."

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Hertzberg’s latest legislation on bail, currently in the state Senate, will do what the Supreme Court’s ruling does not, he said: lay out the details of exactly how busy trial courts will implement the constitutional requirements.

Among other changes, Senate Bill 262 would set bail at zero dollars for all but the most serious charges, freeing trial courts to hold pretrial detention hearings only in cases that are a tougher call.

Some bail industry and police organizations oppose the bill.

“We are pleased to see that the opinion has ended up being both thoughtful and fair to all sides,” a spokesperson for the California Bail Agents Association said of the state Supreme Court’s ruling Thursday.

Bazelon, the USF law professor, said the ruling will go a long way toward addressing systemic inequality in the criminal justice system.

“This decision speaks to the criminalization of poverty, but I also think it’s very important to say this decision speaks to the criminalization of race,” she said. “Overwhelmingly, the people who are stopped, arrested and detained are people of color, often without the ability to pay. Those are the people generally who are not able to be released, not able to fight their case, not able to pay their rent, whose families spiral into a circle of poverty.”

She added that the ruling “takes that tool out of the mass incarceration tool box.”

The Associated Press contributed to this story.