California can no longer detain people because they can't pay bail

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California’s highest court has ruled that judges in the state will have to consider a suspects’ ability to pay when they set bail, a major decision that essentially requires that those who can’t afford bail 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 on Thursday.

The associate justice Mariano-Florentino Cuellar wrote on behalf of the court that judges have a variety of tools at their disposal to protect the public, guarantee victims’ safety and assure a defendant’s appearance at trial, including electronic monitoring, regular check-ins with authorities or mandatory stays in shelters.

“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,” Cuellar wrote.

The decision will mark a major change in the way California’s bail system works, said the American Bail Coalition executive director, Jeff Clayton, on behalf of California’s bail industry.

“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, Clayton said. There will be fewer bails set, and at lower levels, he added.

Criminal justice reform proponents have long argued for changes to the bail system. “The jailhouse door shouldn’t swing open or closed based on how much money you have in your pocket,” said the state assemblyman Rob Bonta, who was nominated this week to replace California’s attorney general, Xavier Becerra.

The high court’s ruling “doesn’t eliminate bail completely, but it eliminates the unfairness of bail”, said the Democratic state senator Robert Hertzberg. California’s bail system “just spun out of control and this brings it back to its core principals of what bail is supposed to be about in the first place”.

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. Critics said that let wealthy suspects go home to prepare for trial while lower-income defendants stayed locked up, a system they said encouraged some innocents to plead guilty to get out of jail.

The California District Attorneys Association didn’t object to the decision and said prosecutors have long felt there should be thoughtful reform, including on the financial issue.

“The research is clear, the negatives of cash bail fall disproportionately on Black and Brown communities without improving safety,” said Karen Pank, the Chief Probation Officers of California executive director. “Wealth should play no role in the justice system and we will continue to fight for a pretrial system that focuses on safety, fairness and effectiveness.”

Opponents of the reform efforts had argued that creating a new “ability to pay” consideration violates state law, which allows for considering the safety of the public and victim, the seriousness of the alleged crime, the suspect’s criminal record, and the likelihood that he or she will flee.

Judges already had the ability to release suspects on their own recognizance, Kymberlee Stapleton, an attorney for the Criminal Justice Legal Foundation, said after the ruling.

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. The Association of Deputy District Attorneys in Los Angeles county said that Humphrey has a long criminal record and faced a potentially long prison sentence on charges including robbery and residential burglary. Humphrey is alleged to have demanded money from a 79-year-old man who uses a walker, then followed the victim into his apartment where he stole the items.

Thursday’s decision follows a similar ruling by Nevada’s supreme court in April.

In 2018, California lawmakers passed a 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. A California judicial order has temporarily set bail at $0 for lower-level offenses during the coronavirus pandemic.


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