Legislators wait for state high court to end cash bail

By Tyler Pialet

After voters rejected a proposal to eliminate cash bail, attention quickly shifted to a case pending before the California Supreme Court that some legal experts say could abolish the system anyway.

The question the high court is grappling with is whether judges should be required to consider a defendant's ability to pay before setting bail. It's a different question than what Proposition 25 presented voters on the Nov. 3 ballot, and the court's ruling could permanently end the cash bail debate in the state.

"If the Humphrey case were affirmed, the state supreme court could just say cash bail is unconstitutional, period, and leave it at that," said Robert Weisberg, co-director of Stanford Law School's Criminal Justice Center, in an interview. "That would mean that cash bail itself could not be reinstituted."

If Proposition 25 had passed, the Humphrey case would likely have been moot.

The bail bonds industry garnered support from unconventional allies in its effort to defeat Proposition 25. Defense attorneys and dozens of civil rights groups opposed the measure that would have made California the first state to eliminate cash bail. The groups argued the proposed replacement -- a risk assessment system generated by computer algorithms -- could produce biased results that would end up with more people awaiting trial behind bars.

"Risk assessment tools have been shown to discriminate against communities of color, immigrants and people from low-income neighborhoods," said San Francisco Public Defender Manohar Raju in a statement.

Eric Schweitzer, president of California Attorneys for Criminal Justice, a statewide group of public and private defense attorneys, called the tools "dangerous, inaccurate and racially biased." He said the group has plans to sponsor legislation next year that will abolish judicial reliance on them.

That rhetoric likely affected how some voters who have long argued for a restructuring of the criminal justice system in California viewed Proposition 25, Weisberg said.

"If you would have asked me ahead of time whether it was going to pass, I would have guessed maybe by a little, simply because if you read it quickly, it sounded like a criminal justice reform measure," Weisberg said. "And California in recent years has been generally inclined in that direction."

Lawmakers who wrote and supported Proposition 25 have not yet hinted whether they plan to pursue similar measures next year, as the state Supreme Court may have the final say in the debate.

The case pending before the high court isn't the first time state and federal courts have grappled with the constitutionality of California's cash bail system in recent years.

In 2019, a federal judge ruled in a high profile pro bono challenge of San Francisco's cash bail schedule that it "significantly deprives plaintiffs of their fundamental right to liberty, and a plausible alternative exists which is at least as effective and less restrictive for achieving the government's compelling interests in protecting public safety and assuring future court appearances. Riana Buffin et al., v. San Francisco et al., 15-cv-04959-YGR (N.C. Cal. March 4, 2019).

Not long after that decision, San Francisco District Attorney Chesa Boudin was sworn into office, and immediately implemented a policy to no longer seek bail for criminal defendants, instead asking the courts to rely on the risk assessment system subsequently proposed in Proposition 25. Other prosecutors such as Santa Clara County District Attorney Jeffrey Rosen, who co-authored SB 10, the 2018 law that voters overturned last week, have done the same.

With the rise of the so-called progressive prosecutor movement and the formation of the Prosecutor's Alliance of California, Weisberg said it's only a matter of time before the push to end bail is successful.

"Cash bail is on life support in California and is going to go away one way or the other," Weisberg said.

The question before the high court in the Humphrey case stems from an appellate court decision in 2018 that held judges should be required to consider a defendant's financial circumstances before setting bail. The opinion, authored by 1st District Court of Appeal Justice J. Anthony Kline, was delivered after a judge in San Francisco initially set bail at $600,000 for Kenneth Humphrey, a defendant charged with beating, robbing and threatening an elderly neighbor in his apartment building.

The case is pending oral argument, and the high court said in August the ruling should be binding on courts until it weighs in. In re Kenneth Humphrey, S247278.

Until a decision is made, however, Weisberg said he expects counties will interpret and apply the 1st District's ruling differently when setting bail schedules.

"We're going to see a lot of interesting local action," he said.