California Bail Reform

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, according to a California Supreme Court ruling issued Thursday.

SACRAMENTO — The California Supreme Court ruled 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 an April 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 he said 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.

California Police Chiefs Association President Eric Nunez said no one should be jailed solely because they can’t afford bail, but “a rigid zero-dollar bail scheme shouldn’t prevent a judge from considering public safety risks for serious and repeat offenders.”

The high court’s ruling “doesn’t eliminate bail completely, but it eliminates the unfairness of bail,” Hertzberg said. 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.”

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