California’s top court ends cash bail for some defendants who can’t afford it

SAN FRANCISCO —  For years, California legislators and judges have tried to reform the state’s money bail system to reduce discrimination against the poor. On Thursday, four months after voters rejected such a reform, the California Supreme Court ruled that it is unconstitutional to require defendants to remain behind bars simply because they cannot afford bail.

In a unanimous decision, the state’s top court told judges to favor pretrial release and consider a person’s ability to pay before setting bail.

Thursday’s ruling is likely to lead to many more people being released without bail before they go to trial. Judges may keep criminal defendants locked up only when “clear and convincing” evidence shows there is no other way to protect the public and ensure the defendants’ return for court appearances.

“The common practice of conditioning freedom solely on whether an arrestee can afford bail is unconstitutional,” Justice Mariano-Florentino Cuéllar wrote for the court, ruling that it violated both state and federal protections.

“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 — can in many cases protect public and victim safety as well as assure the arrestee’s appearance at trial.”

The ruling represents a partial victory for criminal justice advocates and a setback for California’s bail industry. A national coalition of bail agency groups sponsored the November ballot initiative, Proposition 25, to head off a state no-bail law it opposed.

Albert Ramirez, general counsel of the Golden State Bail Agents Assn., said the no-bail law voters rejected would have killed the industry, but it could survive the requirements set by the California Supreme Court.

Though profits will be reduced, “we can live with it,” Ramirez said.

Those who can afford bail will continue to post it, and bail amounts for others may now come down as a result of the ruling, he said. Bail in California has been “ridiculously high,” he said, and the industry recognizes that.

In the past, California judges have based bail decisions on a set schedule and defendants’ criminal records and the seriousness of the charged offenses, without considering whether the accused could afford bail. That left thousands of defendants behind bars because of their financial predicaments.

Bail schedules will remain, and people who are arrested can continue to post the required amounts, Ramirez said. But the accused are entitled to bail hearings within 48 hours after arrest and can argue to a judge that they cannot afford the set amounts.

Now, Ramirez said, “you may get out for free after 48 hours.”

Ramirez said he hoped the ruling would deter state legislators from making more changes in the bail system, but that hope appeared unlikely to be realized.

State Senate Majority Leader Bob Hertzberg (D-Van Nuys) said Thursday that he would continue to promote a bill that would set zero bail for minor offenses and reduce the rate of return for bail bonds companies.

He applauded the court decision, saying it would be incorporated in the legislation, but argued that lawmakers should do more “to take the usury out of the system.”

“We can make it clear that people charged with low-level, nonviolent crimes cannot be detained prior to trial,” he said in an interview.

Thursday’s decision upheld a San Francisco-based state court of appeal decision that allowed Kenneth Humphrey, a retired shipyard laborer, to be released with an ankle monitor because he could not afford bail.

Humphrey faced robbery and burglary charges in San Francisco after being accused in 2017 of stealing less than $10 and a bottle of cologne from a neighbor. Humphrey was 63 at the time, the neighbor 79.

Humphrey had a criminal record, and a trial judge initially set bail at $600,000. The judge eventually reduced it to $350,000, which Humphrey still could not afford. Bail bond companies require defendants to pay up to 10% of the bail amount even when the defendants show up to court. Humphrey did not have the $35,000 to obtain bail.

In challenging the bail decision, lawyers for Humphrey, who is Black, presented a 2013 study of San Francisco’s criminal justice system that found Black adults were 11 times more likely than white adults to be booked into jail before trial. After the appeals court ruled in his favor, Humphrey was released under electronic monitoring and an order to stay away from the victim and to participate in a residential substance abuse treatment program for seniors.

At the behest of then-Atty. Gen. Xavier Becerra, the California Supreme Court in August made the appellate court ruling binding on trial courts, requiring them to consider how much defendants could afford before setting bail. Thursday’s decision means that ruling will remain the law.

The high court cited studies that suggest pretrial jail confinement heightens the risk of losing a job, a home and custody of a child. The court said time in jail awaiting trial also might be associated with a higher likelihood of reoffending, “beginning anew a vicious cycle.”

Six California counties — Alameda, Fresno, Orange, Sacramento, San Bernardino and San Francisco — spent $37.5 million over a two-year period jailing people who were never charged or whose charges were later dropped, the court said, citing a Human Rights Watch report.

The court also noted that pretrial defendants are jailed more often in large urban counties in California than they are elsewhere in the United States, a fact attributed to the state’s high cost of bail. The median bail amount in California is $50,000, more than five times the median amount in the rest of the nation, according to the ruling.

Some other states already have abolished cash bail for most cases, and Illinois this year abolished cash bail altogether.

California Chief Justice Tani Cantil-Sakauye has long championed ending monetary bail for defendants who can’t pay it. In 2017, she appointed a group consisting mostly of judges to study the issue, and it recommended money bail be replaced with a system of risk assessment and supervision.

The Legislature passed a bill reflecting those recommendations in 2018, and then-Gov. Jerry Brown signed it into law. The law made some defendants — those accused of capital crimes or domestic violence and others with recent serious felonies — ineligible for pretrial release.

A day after Brown signed the law, the bail industry launched a signature drive and qualified a referendum that put the law on hold until voters could consider it. The multibillion-dollar bail industry has about 2,500 agents in California.

Liberals, who have long argued that cash bail discriminates against the poor, were divided over the ballot measure. It relied on risk assessments or algorithms to make pretrial release decisions. Some worried the measure would cause judges to defer to risk assessment scores that have been shown to be racially biased instead of doing individual assessments.

The split produced an unlikely but informal alliance — the bail industry, members of law enforcement and the American Civil Liberties Union of Southern California and Human Rights Watch — that led to Proposition 25’s demise.

Jennifer Friedman, head of the California Public Defenders Assn., said she hoped Thursday’s decision would spark a “major sea change and that no one will be held in custody unless it has been shown by clear and convincing evidence there are no alternatives.”

Although judges will be able to set conditions for release that include measures such as ankle monitors, Friedman said she was “cautiously optimistic” that such practices will not become commonplace and “simply turn the for-profit bail industry into a for-profit electronic surveillance industry.”