Judges must consider means in setting bail, California Supreme Court rules

In a significant victory for advocates of changes in the bail system, the California Supreme Court ruled Thursday that judges must consider a defendant's ability to pay when setting bail in criminal cases and said indigent suspects should not be detained awaiting trial unless non-monetary release conditions can't ensure public safety.

The high court's unanimous decision, written by Justice Mariano-Florentino Cuellar, comes four months after voters rejected a bill signed by former Gov. Jerry Brown that would have eliminated bail schedules statewide and replaced them with computer-generated risk assessment tools. Lawmakers have since advanced two new bills aimed at restructuring the state's cash bail system but this time without the risk assessment tools, and one of the authors described the high court's ruling as "absolutely foundational" for those efforts.

"One of the arguments made to elected officials is, 'Why are you doing bail reform? The public said no,'" state Sen. Majority Leader Bob Hertzberg, D-Van Nuys, said in an interview, referring to his defeated bill that sought to replace bail schedules with computer algorithms. "My answer to that is the public didn't say no to bail reform. The public said no to algorithms. And now we have the moral and legal authority of the Supreme Court. It's not equivocating at all."

In the 29-page opinion, Cuellar wrote that California's current bail system, which conditions "freedom solely on whether an arrestee can afford bail," is unconstitutional. In re: Kenneth Humphrey on Habeas Corpus, S24728 (Filed March 25, 2021).

"[W]hether an accused person is detained pending trial often does not depend on a careful, individualized determination of the need to protect public safety, but merely -- as one judge observes -- on the accused's ability to post the sum provided in a county's uniform bail schedule," Cuellar wrote, referencing a 2008 Berkeley Journal of Criminal Law article by San Francisco County Superior Court Judge Curtis E. Karnow.

In many cases, Cuellar held that other release conditions, including electronic monitoring or regular check-ins with pretrial case managers, could protect public safety while assuring the defendant will appear at the next court hearing.

Cuellar also wrote, "If a court concludes that public or victim safety, or the arrestee's appearance in court, cannot be reasonably assured if the arrestee is released, it may detain the arrestee only if it first finds, by clear and convincing evidence, that no nonfinancial condition of release can reasonably protect those interests."

The decision affirmed the 1st District Court of Appeal, which ruled in 2018 that courts must consider the financial circumstances of criminal defendants when setting bail and impose the least restrictive conditions possible when making pretrial release decisions. The appellate ruling, which has been binding on courts pending high court review, remanded the underlying case involving a retired shipyard laborer accused of petty theft and inflicting injury on an elderly man in his home to the San Francisco County Superior Court. That court then conducted a new bail hearing that resulted in the defendant's release with an ankle monitor because he could not afford bail.

"Today marks the effective end in California of wealth-based detention, unaffordable money bail or a system that keeps presumptively innocent poor people locked up for no reason other than the fact that they can't afford to pay their way to freedom," said San Francisco County Public Defender Manohar Raju. "It's a beautiful day for a lot of people in our state, and it's a day that we should use as a springboard for even more reforms to our criminal legal system."

San Francisco prosecutors in 2017 accused Kenneth Humphrey, 66, of following his elderly neighbor into his home, throwing his cell phone on the ground and then threatening to put a pillowcase over his head before stealing $5 and a bottle of cologne. Humphrey was facing a third criminal strike for the alleged offense and was charged with first-degree robbery, first-degree residential burglary, inflicting injury on an elder and misdemeanor theft from an elder adult.

Bail was initially set at $600,000 but was reduced to $350,000 at a hearing in which Humprey was commended for his willingness to participate in drug treatment programs but was still determined to be a public safety threat, according to court records. His attorneys argued he was too poor to pay the reduced amount and subsequently filed a habeas corpus petition challenging his detainment and the state's cash bail system overall.

At oral argument in January, the high court focused its inquiries on two bail provisions in the state Constitution that some legal experts have said are contradictory and have resulted in arbitrary applications of bail. One provision, Article I, Section 12, guarantees an absolute right to bail for essentially all criminal defendants aside from a slim list of exceptions that include capital crimes and some violent and sexual felonies. The other provision, Proposition 9, a voter-enacted measure from 2008 that amended Section 28 of Article I, made setting bail a discretionary practice that requires judges to make public and victim safety their primary concern when conducting pretrial analyses.

Cristine DeBerry, executive director of the Prosecutors Alliance of California, pointed out in a phone interview the court's ruling left unaddressed the question of how those provisions could be reconciled because Humphrey was not denied bail.

"I think that issue will still likely come before the court at some point," DeBerry said. "But in the short term, I think the court is indicating a jurisdiction could set bail, even if it's unaffordable, if it is the only way to achieve public safety."

A spokesperson for the California attorney general's office said in a statement the decision was being reviewed but characterized it as a "critical step forward and a milestone for justice in our state."

Los Angeles County Public Defender Ricardo Garcia praised the ruling and said he is confident judges in LA County will abide by it.

"The front-line lawyers in my office will implement this decision in every case, for every client, in every court, where our clients, many from communities of color, are locked up solely because they cannot post bond," Garcia said in a statement.

Cuellar cited studies that show pretrial detention "heightens the risk of losing a job, a home, and custody of a child," and wrote that "while correlation doesn't itself establish causation, time in jail awaiting trial may be associated with a higher likelihood of reoffending, beginning anew a vicious cycle."

Defendants in large, urban counties in California end up being detained pretrial at higher rates than in large counties in other states, Cuellar added. Citing a 2017 report from a pretrial detention workgroup, Cuellar said that some defendants are safe to be released but lack financial resources for a commercial bail bond while some dangerous defendants can secure their release simply because they can afford it. According to the Public Policy Institute of California, the median bail amount in California is $50,000 -- more than five times the median amount in the rest of the country.

"That disparity lies at the heart of this case," Cuellar wrote.

Greg Totten, CEO of the California District Attorney's Association, said the group "takes no issue" with the court's ruling.

"CDAA has long believed that California's bail system needs to be thoughtfully reformed in a manner that balances both public safety considerations and the individual circumstances of their charged defendant, including, but not limited to, their financial means to post bail," Totten said.

Cuellar concluded that although pretrial detention, in principle, should be reserved for defendants who can't be relied upon to return to court or pose a public safety risk, he concluded that's not how the system has operated in practice.

"Pretrial detention on victim and public safety grounds, subject to specific and reliable constitutional constraints, is a key element of our criminal justice system," Cuellar wrote. "Conditioning such detention on the arrestee's financial resources, without ever assessing whether a defendant can meet those conditions or whether the state's interest could be met by less restrictive alternatives, is not."