Bail

California Supreme Court Rules It's Unconstitutional To Imprison People Just Because They Can't Afford Bail

Pretrial detention is supposed to be for people deemed dangerous, not people without money.

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In a unanimous California Supreme Court decision, the state's top justices ruled Thursday that courts must consider a defendant's ability to pay bail before setting exorbitant demands that keep many people locked up in pretrial detention.

Cash bail is intended to be a mechanism of making sure that people who have been charged with crimes eventually return to court and keep their noses clean while they're free. In reality, the practice has become a system where many people, particularly poor people, are stuck in jail not because they're flight risks or deemed dangerous, but simply because they cannot pay what's asked of them. These people essentially end up serving the equivalent of jail sentences before ever being convicted.

"The common practice of conditioning freedom solely on whether an arrestee can afford bail is unconstitutional," Justice Mariano-Florentino Cuellar wrote early in the 29-page ruling for the court. "Other conditions of release—such as electronic monitoring, regular check-ins with a pretrial case manager, community housing or shelter, and drug and alcohol treatment—can in many cases protect public and victim safety as well as assure the arrestee's appearance at trial. What we hold is that 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."

California has been trying to negotiate bail reforms since 2018, in part due to the case behind this ruing. Kenneth Humphrey, 66, was arrested in 2017 for attempting to rob a 79-year-old man in the victim's San Francisco apartment. The victim had little money. Humphrey left with $7 and a bottle of cologne. He also had some prior strikes dating back to the 1990s but had no arrests for the past 14 years.

Nevertheless, the prosecutor requested, and the court agreed, to set bail for Humphrey at $600,000, later reducing it to $350,000. Humphrey filed a writ of habeas corpus in the state's Court of Appeal, arguing that demanding bail from a defendant knowing that he cannot afford the amount is the equivalent of a pretrial detention order. And if the state is going to demand that a defendant be detained prior to trial, the courts need to establish that the detention is necessary to protect public safety.

Eventually, the court did order Humphrey's release with a bunch of nonfinancial conditions, which included electronic monitoring, orders to stay away from the victim, and participation in a substance abuse program for seniors. San Francisco's then-District Attorney George Gascon supported bail reform (as does current D.A. Chesa Boudin) and asked the Supreme Court to review the state's bail conditions. The justices agreed.

While all that was winding through the courts, lawmakers passed a bill in 2018, S.B. 10, that eliminated cash bail entirely. Representatives from the bail bond industry objected and collected signatures and forced the reforms to a referendum in November 2020.

While bail reform is a big criminal justice concern for many civil rights groups like the American Civil Liberties Union, these groups saw big flaws in the changes the lawmakers passed. It did eliminate bail, but it also gave judges wide authority to order pretrial detention. Many criminal justice reformers feared that the way California eliminated cash bail could result in more people being stuck in pretrial detention rather than fewer. They refused to support the bill and voters tossed it out in November's referendum.

But even though voters rejected S.B. 10, that doesn't mean all prospects of bail reform are dead. The state's Supreme Court decision here is essentially reiterating a constitutional principle about due process and presumed innocence and is telling the state's courts to fix their systems. The court's order will not eliminate cash bail, so it's not actually attempting to force S.B. 10 back into action. The justices are, however, ordering that courts must consider a defendant's ability to pay when establishing bail amounts, and that's at least a pragmatic shift that will hopefully reduce unnecessary pretrial detentions.

Bail is supposed to serve as a financial backstop to make sure defendants behave and return to court. It's not supposed to decide who gets to walk free and who gets stuck behind bars while waiting for the exceedingly slow gears of justice to turn.

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  1. Brilliant stuff. Illinois also has this “on the way”. Why not experiment? It can’t get any worse.

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    2. In Eureka, California there is a guy who breaks into cars, often destroying the window, to get stuff to buy drugs. He has been arrested and released twelve times so far, released without bail, done it again and will eventually get to trial.
      We all applaud the wisdom of this, especially auto glass repairmen.

      1. It is bad for business. Chicago will not prosecute a carjacker until his/her 9th offense if they are a juvenile. 1300+ carjackings last year. A kid that is sticking a gun in a driver’s face just to joyride or to commit a drive-by is violent beyond repair. The thought of a ghetto clown handling a firearm anywhere near me scares me. Worse even still, if I had to shoot a carjacker in Chicago I would be the one facing charges. The only answer to progressive leadership is distance. Even visiting is out of the question now.

        1. I am shocked, I say shocked that there guns in the hands of criminals in Chi town. My understanding is that Chicago has some of the strictest gun control laws in the US.

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  2. No worries, Dog the Bounty Hunter has a school now. He teaches solar installation and coding to former Bounty Hunters.

  3. Catch and release works fine for illegal immigrants, why not citizens?
    Equal justice and all that jazz.
    (I will believe in equal justice when Hunter Biden is arrested for gun crimes)

    1. You’re talking about desperate human beings like they’re trout. It’s blatant dehumanization. That’s why terms like “catch and release” and “illegal alien” exist. To make morons like you think of other human beings as disposable.

      Work on that problem of yours.

      1. Please send us your address so that you can invite these humans into your home. Or not, but they can come in anyway.

      2. If there is one thing that I have learned from living in Turkey, Iraq, Egypt, Afghanistan, Mexico, and the Ukraine is that people are disposable. To deny it is to deny the pyramids and any other evidence of the ancient world. They become even more disposable when Marxist principles are applied.

      3. of course it’s “blatant dehumanization”. Like it or not, that’s how the game is played: us vs. “those things”. The best way around it is to come up with a solution that actually works and figure out how to sell it to those who haven’t drunk the kewl-aid.

      4. this is just misdirection… deal with his complaint! – equal justice b4 the law

      5. Faggot, please. Yo doe a shit about anyone other than yourself. You’ve admitted this more than once.

      6. “You’re talking about desperate human beings like they’re trout. It’s blatant dehumanization.”

        Wah! I convict thee of WrongTone! Wah!

      7. Work on understanding they are illegal alien criminals no matter what the president with dementia says. Most of us don’t give a shit about the rights or safety of people coming here illegally.

  4. Unevenly supported by this magazine. So no go.

  5. As long people out on bail don’t get their 10% deposit back people not quite poor enough to have bail waived will still be screwed. In Massachusetts defendants do get their 10% back (no bail bond industry) but there is a similar gap where people are not poor enough to get a public defender but not rich enough to afford a lawyer.

  6. More good news for the Koch / Reason #EmptyThePrisons agenda.

    1. #EmptyThePrisons is pretty obviously failing

      Incarceration rate – prisoners/100k people – of a few states and countries:

      Louisiana – 980
      Oklahoma – 970
      Mississippi – 920
      Georgia – 850
      US – 639
      El Salvador – 570
      Cuba – 510
      Brazil – 357
      Russia – 330
      Iran – 228
      Venezuela – 178

      #LibertariansWhoKnowCubaIsAlreadyTooLibre

      1. I question the validity of some of those numbers. Additionally, I suspect it’s very likely that the other countriest use different criteria in their calculations.

        1. Of course you question them. Because you authoritarian bootlickers have no interest in how actual free countries deal with problem issues like crime. You prefer to politicize crime – like the countries above – and, in so doing, a high incarceration rate proves that we are tough on antisocial deviant types. That’s what wins elections and gives your ilk an anti-crime boner.

          Here’s the incarceration rates of some actual free countries rather than American posers:
          Singapore 195
          Mexico 166
          UK 130
          Canada 104
          France 90
          Germany 69
          Norway 49
          Japan 38
          India 35

          #BecauseCubaIsTooLibre

          1. Oh – and the US is actually very low on the pre-trial detention %. So that’s not our prisoner count

            1. Your definition of ‘free’ is lacking. As is your thinking and conclusions. It’s your evil Marxist friends politicizing EVERYTHING.

              And for the record, I lick no one’s boots. I leave that to collectivist leftist trash, such as yourself.

  7. As the California bill showed, “end cash bail” is often coupled with “pretrial detention for people we consider dangerous, even if charged with a noncapital crime!”

    At the Founding, there was a recognized right to bail in noncapital cases, and even in capital cases the prosecution had to show that the proof was evident and the presumption strong, before bail could be denied.

    Then Congress and the US Supremes said pretrial detention was OK not just for capital crimes but whenever the court found the defendant sufficiently dangerous.

    Now we have people being held without bail while facing charges of breaking into the Capitol building.

    While those who burglarize regular people’s buildings walk free.

    1. When the terrorists are incredulously asking judges why they can’t flee to central America for a “wedding,” maybe it’s best to assume they’re flight risks.

      1. They all have weddings scheduled in Central America? That does seem suspicious.

    2. Capital crimes, Capitol crimes, what’s the difference?

  8. Yeah, except the California voters just voted on this in November and said no to doing away with cash bail. Government by the people, remember?

  9. All this could be solved by allowing trials in absentia. Why should defendants be forced to attend their own trials? I can’t think of many cases where the defendants physical presence is necessary to establish the truth or falsehood of the charges against him.

    1. The Confrontation Clause of the Sixth Amendment to the United States Constitution provides that “in all criminal prosecutions, the accused shall enjoy the right…to be confronted with the witnesses against him.” Generally, the right is to have a face-to-face confrontation with witnesses who are offering testimonial evidence against the accused in the form of cross-examination during a trial. The Fourteenth Amendment makes the right to confrontation applicable to the states and not just the federal government.[1] The right only applies to criminal prosecutions, not civil cases or other proceedings.

  10. they are not imprisoned because they cannot afford bail, they’re imprisoned because they are accused of a crime. bail is offered to encourage attendance at the hearings and trials. LOT’S of folks cannot afford bail. luckily for them they are not criminals so their lack of funds is not a problem in this regard. they also cannot afford a new corvette, fine dining, and lots of other things. California has again placed portland and other lefty crapholes in their wake

    1. “they are not imprisoned because they cannot afford bail, they’re imprisoned because they are accused of a crime. ”

      Yeah, well, welcome to the Billy Binion School of Journalism: Post Hoc, Ergo Propter Hoc!

      Reason is a propaganda sewer.

    2. they are not imprisoned because they cannot afford bail, they’re imprisoned because they are accused of a crime.

      Sentence first, verdict afterwards, amirite?

    3. Locally we just had a man held, because he couldn’t afford bail, for sixty days until his trial. He was found not guilty. The maximum penalty if he was found guilty was thirty days. The County that held him is billing him for the time he was in jail.

  11. ” . . . while waiting for the exceedingly slow gears of justice to turn.” — This is a large part of the problem – speed. The length of stay in pretrial detention is often quite long, sometimes months. This is effectively presuming guilt and punishing in advance of trial. And will almost certainly result in loss of whatever job the defendant held, interfere with parental responsibilities, etc. All of which makes it more significantly difficult to get ones life back on track.

    1. “This is effectively presuming guilt and punishing in advance of trial.”

      The process is the punishment.

    2. So remember kids, never even get suspected of committing a crime.

    3. +1 The Confrontation Clause of the Sixth Amendment to the United States Constitution provides that “in all criminal prosecutions, the accused shall enjoy the right…to be confronted with the witnesses against him.” Generally, the right is to have a face-to-face confrontation with witnesses who are offering testimonial evidence against the accused in the form of cross-examination during a trial. The Fourteenth Amendment makes the right to confrontation applicable to the states and not just the federal government. The right only applies to criminal prosecutions, not civil cases or other proceedings.

  12. I live in California. This is going to backfire. I understand that on rare occasions, like the example given in the story, bail is set way too high. But usually it is reasonable. And there are people who are guilty as sin of petty but serious crimes who will wind up getting freed, instead of getting locked up, because they claim they have no money and it is not fair, even though they have been caught red handed. We voted against this as a state, and the courts are overriding the wisdom and desires of the people because of a misguided notion of fairness. What will happen is that prosecutors are going to pile on more charges in the future as a way of discouraging bail avoidance, and some who could have posted their way out in the past are going to be more screwed. And we are going to have a lot more outstanding warrants and defendants that don’t report to trial. Good intentions lead straight to hell.

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