For years, efforts have been underway to eliminate cash bail within California. While Prop 25 was voted down by the state’s voters, even many people who voted against the measure still opposed cash bail but disliked the specifics of the proposition. But as the public took a vote on the matter, the state Supreme Court was slated to hear arguments on how the system creates an unfair playing field for impoverished Californians. And now they’ve made their decision, agreeing with reformers that the system simply isn’t fair to everyone going through the criminal system.
A Unanimous Decision
Every member of the California state Supreme Court agreed with the opinion written by Justice Mariano-Florentine Cuellar stating that it is unconstitutional to keep someone locked in jail until their trial simply because they cannot afford bail. The court ruled that doing so does not keep communities safe, especially when “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.”
But Cash Bail Isn’t Being Eliminated -Right Now
It’s important to recognize that the ruling doesn’t require the state to completely eliminate cash bail. Instead, prosecutors must present clear and convincing evidence that a defendant represents a public safety or flight risk -enough evidence to convince the judge that bail is necessary. Additionally, judges must also consider the defendant’s ability to pay when setting the value of the bail.
Under the current system, each county has its own bail schedule and a defendant has until the arraignment to pay this amount. At the arraignment, the defense may argue for reduced bail or for the defendant to be released on his own recognizance, and the prosecution may argue for bail to be increased if they feel the defendant is a flight risk or a risk to public safety.
The ruling does not make it clear if the bail schedule will continue to be used as a guide at all or if a new system will be created to help judges determine a fair bail amount based on the defendant’s ability to pay. The current system could also be upended by a bill going through the state legislature that aims to create a standardized bail schedule to be used by the entire state, rather than each county setting their own schedule.
How Much is Bail Anyway?
Well, that’s part of the problem. The cost of bail has continued to rise steadily over the past few decades and now California has one of the highest median bail rates in the country coming in at $50,000, a full five times higher than the $10,000 median rate in the rest of the country.
In San Diego, for example, the current bail for a first time charge of misdemeanor domestic violence is $10,000, while felony corporal injury to a spouse or partner is $50,000. A first offense of driving under the influence of alcohol has a $2,5000 bail. The schedule has minimum bails for some offenses set as high as $2,500,000.
Research shows that as bail rises, pretrial release rates drop dramatically.
Not All Crimes Qualify for Bail
It’s also worth noting that under the current system, judges may refuse to offer bail to defendants charged with certain crimes. This includes any capital crime or violent or felony crimes where the judge believes the defendant’s release could result in great bodily harm in others.
What Does this Ruling Mean Then?
Well, it means the bail industry will stay in business as bail will continue for some cases, but most people accused of crimes will be eligible for pretrial release without bail. In theory, likely means the system will stay somewhat similar to how it has been operating with the zero bail order that has been in place during the coronavirus pandemic -only now those who may need to pay bail because they are accused of crimes such as serious felonies or violent crimes will have their bail determined by their ability to pay, not just a standard county bail schedule.
Aside from helping to ease disparities in the justice system between rich and poor defendants, releasing those who cannot afford bail will also decrease the incentive to plead guilty just to get out of jail and get back to a job or family. This won’t just help those who are innocent, but also increase the likelihood that the real person responsible for these crimes will be caught since the cases may not be so easily closed.
Of course, there are still some problems with the ambiguity of the Supreme Court’s ruling. For example, it is unclear whether defendants or the state will pay for alternatives to jail like electronic monitoring and substance abuse treatment. If someone cannot be jailed pending trial because of income, then releasing them on condition they pay for electronic monitoring or treatment is creating another form of wealth-based disparate treatment.
If you are accused of a crime or have any questions about what this ruling could mean for the justice system, please call (760) 643-4050 to schedule a free initial consultation with Peter M. Liss.
