By David M. Greenwald
In a landmark decision that will drastically change the dynamics of bail, the court while stopping short of declaring cash bail unconstitutional, rule in a unanimous opinion written by Justice Cuellar that the court must take into account ability to pay when it sets bail.
Kenneth Humphrey was charged in May 2017 with robbing an elderly neighbor of $5 and a bottle of cologne, then threatening him. His bail was set at a whopping $600,000 but later reduced to $350,000 for a then 64-year-old retired shipworker.
In January 2018, the California First District Court of Appeal found that California’s money bail system violated due process and equal protection sections of the California Constitution. The court required trial court judges to factor defendants’ financial capacities and non-monetary options for release when determining bail.
The court in their ruling on Thursday upheld that opinion.
“The common practice of conditioning freedom solely on whether an arrestee can afford bail is unconstitutional,” they write.
“Because the trial court here failed to consider Humphrey’s ability to afford $350,000 bail (and, if he could not, whether less restrictive alternatives could have protected public and victim safety or assured his appearance in court), we agree 
with the Court of Appeal: Humphrey was entitled to a new bail hearing,” Justice Cuellar writes.
THe court notes that underlying the cash bail system is a major premise that “that the state has a compelling interest in assuring the arrestee’s appearance at trial and protecting the safety of the victim as well as the public.”
At the same time, the court recognized that those pending trial “have not yet been been convicted of a charged crime” and therefore “unquestionably suffer a “direct ‘grievous loss’ ” of freedom in addition to other potential injuries.”
They note: “In principle, then, 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 in practice, it’s a different story.
Cuellar writes: “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.”
Humphrey and his attorneys argues, this time joined by the Attorney General, “No person should lose the right to liberty simply because that person can’t afford to post bail.”
Whilte the court finds “merit in Humphrey’s claim” they don’t quite go that far.
“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” the court writes.
They acknowledge, “In unusual circumstances, the need to protect community safety may conflict with the arrestee’s fundamental right to pretrial liberty.” Under those conditions, “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.”
But such detention does not depend on financial condition, but rather on the “insufficiency of less restrictive conditions to vindicate compelling government interests.”
They write: “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.”
—David M. Greenwald
Video clip on bail reform:
Full interview with Alex Karakatsanis of Civil Rights Corp:
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