California Supreme Court:
Unanimous Court Says Defendant Cannot Be Held Based Solely on Inability to Post Bail
From staff and wire service reports
The California Supreme Court held unanimously yesterday that pre-trial detention of a defendant who is financially unable to post bail is unconstitutional unless the dangerousness of the individual or a strong prospect of flight compels incarceration.
“[P]retrial detention is subject to state and federal constitutional constraints,” Justice Mariano-Florentino Cuéllar wrote, declaring that “such detention is impermissible unless no less restrictive conditions of release can adequately vindicate the state’s compelling interests.”
Cuéllar set forth:
“In principle…, pretrial detention should be reserved for those who otherwise cannot be relied upon to make court appearances or who pose a risk to public or victim safety….But it’s a different story in practice: Whether 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.”
Lesser Restrictions Cited
He went on to say:
“The common practice of conditioning freedom solely on whether an arrestee can afford bail is unconstitutional. 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. What we hold is that 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….
“In unusual circumstances, the need to protect community safety may conflict with the arrestee’s fundamental right to pretrial liberty—a right that also generally protects an arrestee from being subject to a monetary condition of release the arrestee can’t satisfy—to such an extent that no option other than refusing pretrial release can reasonably vindicate the state’s compelling interests. In order to detain an arrestee under those circumstances, a court must first find by clear and convincing evidence that no condition short of detention could suffice and then ensure the detention otherwise complies with statutory and constitutional requirements.”
The jurist added:
“Detention in these narrow circumstances doesn’t depend on the arrestee’s financial condition. Rather, it depends on the insufficiency of less restrictive conditions to vindicate compelling government interests: the safety of the victim and the public more generally or the integrity of the criminal proceedings. Allowing the government to detain an arrestee without such procedural protections would violate state and federal principles of equal protection and due process that must be honored in practice, not just in principle.”
The decision comes after voters in November rejected an initiative that would have ended California’s cash bail system entirely by substituting risk assessments for every suspect, and comes months after a proclamation by Chief Justice Tani Cantil-Sakauye’s setting bail at $0 for lower-level offenses during the coronavirus pandemic.
The court’s ruling allows cash bail, so long as defendants can afford it.
Public Defender Comments
Los Angeles County Public Defender Ricardo D. Garcia issued this statement:
“…I encourage every justice reform advocate to take a moment and celebrate. The California Supreme Court declared in Humphrey that presumed innocent people should not languish in jail awaiting adjudication of the accusations against them solely because of an inability to afford bail. This immoral practice has now been declared unconstitutional.”
He expressed confidence “that the judges in Los Angeles County will implement this important decision, protecting the rights of presumed innocent Angelenos,” pledging:
“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.”
American Bail Coalition Executive Director Jeff Clayton said:
“It’s going to be a big change in the way the system works.”
He noted that the decision is similar to an April ruling by the Nevada Supreme Court.
“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, he remarked.
State Senate Majority Leader Robert Hertzberg, D-Van Nuys—who is coauthor of SB 262 (mirroring AB 329), which would set bail at $0 for misdemeanors and low-level felonies—said yesterday’s high court decision and the pending legislation “go hand in glove.”
The decision “doesn’t eliminate bail completely, but it eliminates the unfairness of bail,” he said, commenting that California’s bail system “just spun out of control and this brings it back to its core principles of what bail is supposed to be about in the first place.”
The California District Attorneys Association took no issue with the court’s holding. CEO Greg Totten, former district attorney of Ventura County, said prosecutors have long felt there should be thoughtful reform, including on the financial issue.
Chief Probation Officers of California Executive Director Karen Pank said in a statement:
“The research is clear, the negatives of cash bail fall disproportionately on Black and Brown communities without improving safety. Wealth should play no role in the justice system.”
While it considered the case, the high court in August took the extraordinary step of requiring California judges to follow a lower court ruling and set bail amounts based on what suspects can afford to pay.
New Attorney General
The appeals court ruling had support including from then-Attorney General Xavier Becerra, who was confirmed last week as President Joe Biden’s health and human services secretary. To replace him, Gov. Gavin Newsom on Wednesday nominated Assemblyman Rob Bonta, one of the Legislature’s main proponents of ending cash bail.
“The jail house door shouldn’t swing open or closed based on how much money you have in your pocket,” Bonta said yesterday.
Judicially creating a new “ability to pay” consideration violates the Victims’ Bill of Rights Act, also known as Marsy’s Law, approved by California voters in 2008, the Criminal Justice Legal Foundation argued in a friend of the court brief.
The foundation, which represents the interests of crime victims, contended that making cash bail contingent on suspects’ ability to pay violates state law, which allows for considering the safety of the public and victim, the seriousness of the alleged crime, the suspect’s criminal record, and the likelihood that he or she will flee.
Judges already had the ability to release suspects on their own recognizance, foundation attorney Kymberlee Stapleton said after the ruling.
“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,” she said. ”It’s hard to tell what impact this will have on victim and public safety going forward.”
The high court’s ruling came in the case of 66-year-old Kenneth Humphrey of San Francisco, who was jailed for more than eight months because he couldn’t post $350,000 bail on charges of stealing $5 and a bottle of cologne from a neighbor in a senior housing complex in May 2017.
The Association of Deputy District Attorneys in Los Angeles County noted that Humphrey has a long criminal record and so faced a potentially long prison sentence on charges including robbery and residential burglary. He is alleged to have demanded money from a 79-year-old man who uses a walker, then followed the victim into his apartment where he stole the items.
“Pretrial liberty should be the norm and not the exception,” San Francisco Public Defender Mano Raju said. He related that he spoke to Humphrey yesterday, reporting:
The case is In re Humphrey, 2021 S.O.S. 1271.
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