The California Supreme Court ruled Thursday that judges must consider an arrestee’s ability to pay bail, and may not hold them solely because they couldn’t afford bail.
In a unanimous decision, Associate Justice Mariano-Florentino Cuellar wrote on behalf of the court explaining their decision to change who or who cannot be given cash bail, noting that numerous other conditions for release adhere suspects to come back for trial and that bail unfairly burdens low-income Californians.
“The common practice of conditioning freedom solely on whether an arrestee can afford bail is unconstitutional,” said Associate Justice Cuellar on Thursday. “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.
“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 – are often enough. They protect public and victim safety as well as assure the arrestee’s appearance at trial.
For decades, the legality and scale of cash bail have gone back and forth in California. This has been especially notable in recent years. In 2018, then-Governor Jerry Brown signed into law SB 10, which eliminated cash bail in California. However, many Californians, led by several law groups and bail bond organizations, immediately fought against the new law. They successfully halted the law from coming into effect in 2019 by putting forth a voter referendum on the issue. Known as Proposition 25, cash bail went in front of voters in November. Support for cash bail won out with 56% of the vote, effectively derailing SB 10 and bringing back the anti-cash bail movement back to square one.
Outrage, praise over court’s bail decision
Despite Prop 25 not being violated due to the court only limiting who would have to have cash bail, many bail supporters were outraged at the decision on Thursday and Friday.
“Pretty much this ruling will only have bail for those considered big risks, but it’s also the best incentive for people to go to court,” said Los Angeles lawyer Tom Peck to the Globe. “And you know, the bail industry is going to suffer due to less given out. Plus, the big one, public safety. There are going to be a lot of possible criminals awaiting trials out there. Some will continue their life, like going to work and whatnot. But the system won’t be perfect, and some people inherently dangerous will slip out without being flagged as a risk.
“It will be interesting to see the stats in a year, especially of how many of those out without bail actually show up to their trial, and how many committed crimes while out, especially violent and repeat offenders who manage to get out without bail.”
In addition, crime victims groups such as the Criminal Justice Legal Foundation (CJLF) made similar arguments.
“The money bail is there to ensure that they do come back for their trial date, and they’re incarcerated to protect the victim or the public,” said CJLF lawyer Kymberlee Stapleton. “It’s hard to tell what impact this will have on victim and public safety going forward.”
Bail companies also noted concern over the new ruling.
“It’s going to be a big change in the way the system works, explained American Bail Coalition Executive Director Jeff Clayton on Thursday. “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.”
Conversely, many bail reform advocates and lawmakers against bail praised the Supreme Court’s ruling on Thursday.
“The research is clear, the negatives of cash bail fall disproportionately on Black and Brown communities without improving safety,” stated Chief Probation Officers of California Executive Director Karen Pank. “Wealth should play no role in the justice system and we will continue to fight for a pretrial system that focuses on safety, fairness and effectiveness.”
Many lawmakers who supported SB 10 in 2018, including Assemblyman and State Attorney General-nominee Rob Bonta (D-Oakland), also praised the court’s ruling, noting that while it doesn’t get rid of bail completely, it removes the unfairness of bail.
“The jail house door shouldn’t swing open or closed based on how much money you have in your pocket,” said Bonta in a statement.
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