by David M. Greenwald
San Francisco, CA – Early on Thursday, the California Supreme Court called the practice “conditioning freedom solely on whether an arrestee can afford bail,” “unconstitutional.” The court stopped short of ending cash bail and supporters at a press conference hosted by Civil Rights Corps and the San Francisco Public Defenders office called it a good first step.
Alec Karakatsanis, Executive Director of Civil Rights Corps, noted that four years ago Kenneth Humphrey was confined to a jail cell “solely because he couldn’t pay $600,000 cash.” He was ultimately able to get that number down to $350,000 and through a court of appeals decision gain his release.
California Supreme Court in a 7-0 Decision Requires Court To Consider Ability To Pay in Setting Bail
“The assembly line money bail system has continued to flourish in California and beyond,” he said noting that 500,000 people are in “cages” awaiting trial, the majority of them, trapped there, away from their family and jobs “solely because they lack access to cash.”
“Today’s decision will go a long way to eradicating the widespread caging in our society,” he said. “But it’s also just a first step.”
Many actors in the system he said, benefit from pretrial caging “and they are working hard to ensure that any replacement of the money bail system reproduces the same basic outcome with different labels,” Karakatsanis said.
Mano Raju, San Francisco’s Public Defender said that the message delivered by the Supreme Court is that the lives of people in the system and their families, matter.
“Pretrial liberty should be the norm and not the exception,” Raju said.
He explained that he spoke to Mr. Humphrey and his attorney and that he was thrilled by the decision.
“Not only is Mr. Humphrey not a threat to public safety, he’s an asset,” Raju explained. After his release he has taken on the role of mentor to many in the community. “He has helped to change the lives of so many others for the better.”
Raju said that for way too long, “too many judges have been using bail to detain people without saying so. The impact of this is that it’s forcing people to give up their rights. It’s been forcing unjust prosecutor friendly plea bargains.”
“Today is a big day of ending that practice,” he added.
Mano Raju also noted that the decision acknowledged the fact that bail has been used as a tool of racial oppression.
In an exhibit, Justice Cuellar noted the defense motion which attached a 2013 study of San Francisco’s criminal system.
That study found, “Black adults in San Francisco are 11 times as likely as White adults to be booked into County Jail” 
prior to trial.
“The crisis in California is even higher because the bail schedule has been so high that only the super rich can afford to pay their way to pretrial freedom,” he said. “Pretrial detention heightens your risk of losing your job, losing your home. It’s a vicious cycle.”
He sees this decision as the effective end of wealth-based detention in California.
Gina Clayton-Johnson, Executive Director and Founder of Essie Justice Group said the question of the right to pretrial liberty has a significant impact on the lives of people incarcerated pretrial and their family members.
Essie Justice represents women with incarcerated family members and they are the ones, she said, “who have shouldered the costs of bail fees.”
“The injustice of our bail system in this state has been devastating,” she said. “Half of the women who have ever owed money to a bail bonds agency, have faced housing insecurity. Black women’s household assets have decreased by 64 percent as the result of a loved one’s incarceration. One in four women have a family member behind bars.”
“Bail is the mechanism that has made mass incarceration possible,” she said. Those fighting charges while behind bars are more likely to take a plea, less likely to win their case, and even if innocent, the family can be left financially devastated.
Raj Jayadev, Co-Founder of the Silicon Valley De-Bug said that three years ago at a participatory defense meeting with parents of people incarcerated pretrial, he read the appellate court decision in the Humphrey case and people cried.
“Many of them had not touched their loved ones in years despite having not having been convicted of any crime,” he said. In some cases they went into custody when a child was just born and were entering the second grade, still in custody.
De-Bug organized groups across the state so that those with loved ones in custody, “knew because of Mr. Humphrey, Civil Rights Corps, the San Francisco Public Defenders Office, there was a new day for pretrial justice in California.”
Jayadev noted, “The Humphrey case, then and now, is not simply a legal ruling that exists on paper. The case has become a liberatory rule for our movement.”
“Our participatory defense hubs have used and will use the Humphrey ruling to win the freedom for arraignments and bail hearings,” he said. “In an area where COVID ran rampant through our jails, these are literally life-saving actions.”
By being free due to the Humphrey ruling, they are free to challenge the allegations outside of custody rather than facing the coercive pressure creating a plea deal from the inside.
“That’s why I think Mr. Humphrey is the most important historical figure in the national story of racial justice to end money bail,” he said.
Jayadev called the ruling a “validation of a ground up movement” that “says liberty cannot be stripped simply because of an inability to pay for one’s freedom.”
But he also noted that the Supreme Court “punted” on the critical question of who can be considered for detention. He added, “That’s clearly where our movement’s focus will now go.”
San Francisco DA Chesa Boudin was one of Humphrey’s original defense attorneys when he was with the SF Public Defender’s office.
In a tweet on Thursday, he said, “Proud that my office was ahead of the curve; we eliminated our use of bail altogether in San Francisco.”
Boudin noted that the court explained that, “It is one thing to decide that a person should be charged with a crime, but quite another to determine, under our constitutional system, that the person merits detention pending trial on that charge.”
The court added, “Pretrial detention on victim and public safety grounds is a key element of our criminal justice system. Conditioning detention on the arrestee’s financial resources without ever assessing whether a defendant can meet those conditions … is not.”
Supporters of SB 10 – State Senate Majority Leader Bob Hertzberg, Senator Nancy Skinner, and Assemblymember Rob Bonta – lauded the decision.
In a joint statement they said, “We are thrilled with this morning’s California Supreme Court unanimous ruling that the current money bail system is unconstitutional on the grounds that it detains people charged with a crime behind bars simply because they cannot afford to post bail pending their trial. As legislative leaders in the fight against this unjust, cruel and unconstitutional money bail system, and authors of this year’s Senate Bill 262 and Assembly Bill 329, which endeavor to reform money bail, we are committed to the enforcement of the new ruling and to maximizing its impact.”
“Cash bail is unjust, and what the court made clear is that cash bail does not work. It does not make us safer, it wastes tax payer money, and it is discriminatory,” said Senate Majority Leader Hertzberg. “We still have more to do, but this is a great day.”
“Today’s decision declaring California’s money bail system unconstitutional is a great victory for justice and equity. I applaud the court’s decision and thank Mr. Humphrey for his courage in fighting for himself and the thousands of Californians who are now sitting in jail awaiting trial simply because they could not afford bail, Senator Skinner added.
“Today’s ruling is significant. The jail house door shouldn’t swing open or closed based on how much money you have in your pocket. If I’m fortunate enough to be confirmed as Attorney General, I look forward to working together with law enforcement agencies as California implements this important change,” said Assemblymember Bonta who may well set the guidelines if he confirmed as the next state attorney general.
—David M. Greenwald reporting
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California gets less safe everyday.
Money’s not your lever to public safety
I don’t understand how California gets less safe. The court ruling basically says that money alone should not be the barrier to someone gaining freedom and that people who cannot afford to pay bail should not be held in custody absent a compelling government reason – flight risk or public safety. I fail to see how that makes us less safe. In fact, I could argue it makes us more safe because it allows people to not be financially cripple by pending charges. Either someone is a risk to the public or not. Ability to pay is not a measure of that risk.
Another way of looking at it is this ruling makes it much easier for criminals to get back out on the streets thus making California less safe.
As the other commenter pointed out, it’s a matter of timing rather than ease. The majority of the people held pretrial end up being released without serving additional time and may not have been required to be incarcerated anyway. You can always hold people who are deemed a true public safety risk.
A leading cause of recidivism is diminished economic opportunity and pretrial detention plays a huge role in that. The big picture therefore argues against your view – people will be released at some point anyway and by holding them longer, you actually reduce their economic opportunity which leads to reoffending.
I thought that Biden did-away with that. 🙂
Why are they in cages in the first place? Because most of them committed a crime…
If they start releasing 500,000 suspects (assuming that number is even correct), there will likely be a problem.
And if they keep them in jail instead (rather than releasing them via cash bail), that’s going to cost the state more money.
One does not need to have money personally, to raise cash bail.
I might have suggested that the state return money to those accused (including any interest that they paid), if found innocent. (But, no one asked me for my suggestions.)
“If they start releasing 500,000 suspects (assuming that number is even correct), there will likely be a problem.”
This is the myth. You know what percentage of those 500,000 people are going be out in the next year? 85 percent. It’s only a matter of when they are released. But while they are in their – they are not earning money, paying their rent, they are under pressure to cop to worse pleas, and they are more likely to be convicted. Plus you end up paying $85,000 a year for them to do all this.
Not sure which part – the 500,000 number in the article, or how many will now be released.
Perhaps that’s the problem.
On average, were they doing so before they were arrested?
Those are two different things. But I doubt that many who are guilty plead that way (or are factually innocent, but falsely convicted). Are there actual (not made-up) statistics regarding this?
Assuming that number is correct, the government will now be paying more to house them, rather than releasing them under cash bail. Unless they just release them.
Maybe folks who are actually convicted of crimes can help offset some of their costs (while simultaneously gaining skills that would help them upon release). For that matter, some have innate skills that have been underutilized prior to conviction. Maybe it’s time for “correctional centers” to actually serve the purpose implied.
Innocent until proven guilty, no?