Amici curae ask court to guide Legislature in considering bail

Amici briefs filed with the state Supreme Court Wednesday show widespread desire for the justices to weigh in on the contentious bill signed by Gov. Jerry Brown in August that eliminates money bail.

In September, the court asked parties to address three issues: 1) whether the appellate panel had erred in finding due process and equal protection require a consideration of a criminal defendant's ability to pay, 2) if, when setting bail, a trial court may consider public safety and 3) under what circumstances does the state Constitution permit bail to be denied in noncapital cases. In re Humphrey, S247278 (Ca. Sup. Ct., filed Feb. 27, 2018).

In response to the court's request, attorneys from the American Civil Liberties Union, the state attorney general's office and the American Bar Association as well as law professors, criminal defense attorneys and bail bondsmen weighed in on SB 10.

While the court was asking what effect, if any, does the elimination of cash bail have on the case, most parties urged the court to reverse its viewpoint.

"There's no challenge to SB 10 presented in the case," said San Francisco Deputy Public Defender Chesa Boudin, who represents the petitioner. "What's at issue is the constitutional framework in which SB 10 will be implemented."

Boudin, and amici who filed briefs in support of his client, cite language from the bill to emphasize this point. In addressing preventative detention of pretrial defendants, the bill defers to the state Constitution "as interpreted by the California courts of review."

"It is the court's determination on the California constitutional issues that informs SB 10, not the other way around," the ACLU Foundation of Northern California Inc. wrote in its brief.

"Setting the outer limits on detention will impact the interpretation of the bill," said ACLU staff attorney Micaela Davis. "Under the California Constitution, pretrial freedoms should be the norm, with pretrial detention being the narrowly carved out exception."

The ACLU has had a complicated relationship with the bill, having been an early backer only to reverse positions the day it passed the Legislature. Davis said many of the organizations' objections to the bill, which received radical changes days before hitting the floor for a final vote, are not being addressed in Humphrey. But criminal defense attorneys said the court has an opportunity to cut the problematic bill off at the head.

Law Offices of Bartell & Hensel partner Donald J. Bartell, who filed an amicus brief on behalf of the California DUI Lawyers Association, said he hopes the court will deem both SB 10 and a 2008 proposition amending the state Constitution's treatment of pretrial release unconstitutional. At the very least, he hopes the court will offer guidance to a now-defunct system, which hasn't been supplemented with a meaningful replacement.

"Because of the massive impact this is going to have, the court did the right thing having people weigh in now," Bartell said. "If the court doesn't give guidance, it's going to be chaos come next October."

Albert W. Ramirez, general counsel for the Golden State Bail Agents Association, said there cannot be an issue of mootness when the implementation of SB 10 is still a long way off. His organization, for example, is part of an effort to collect signatures favoring a referendum seeking to repeal SB 10 in 2020, a movement that, if successful, will at the very least stay the implementation of the law until the referendum is voted on.

"The Legislature knew this case was pending when they went ahead and passed it. I consider that to be a rash act," Ramirez said. "The court may rule in a way that contradicts some or all of SB 10 and then the Legislature has to go back to the drawing board."

In its brief, the American Bar Association referenced its extensive examination into money bail systems, calling them "inherently discriminatory, damaging to the accused's rights, unnecessary to ensure justice and public safety, and often contrary to the constitutional principles embraced by the ABA standards."

Attorney General Xavier Becerra issued a statement along with his brief saying, "Bail determinations should be about danger to the public, not money in your pocket. Decisions regarding whether to keep a person in jail while he or she is awaiting trial must ensure public safety and respect the rights of defendants. Whenever possible, we should be using alternatives to incarceration that preserve public safety and ensure a defendant's return to court."