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The last several decades have seen an increase in the movement for bail reform. Its purpose is the criminal justice system’s reexamination of the use of money bail as a means of pretrial detention. Data shows that six California counties (Alameda, Fresno, Orange, Sacramento, San Bernardino, and San Francisco) spent $37.5 million over two years jailing people who were never charged or whose charges were later dropped. Some states have abolished cash bail for most cases, including Illinois which has completely abolished cash bail.
The release of an arrestee pending trial is typically conditioned on the arrestee “making bail.” This requires that the person arrested posts some security, whether cash, property or a commercial bail bond. This property is forfeited if the arrested party fails to appear in court.
Anyone without the funds or property necessary to afford bail remains in jail for the duration of their criminal proceedings. The first recorded and recognized cash bond beyond the reach of an arrestee in the United States occurred in 1835. It was set for a defendant accused of attempting to kill President Andrew Jackson.
In early spring of 2021, in a unanimous decision, in re Humphrey, the California Supreme Court ruled that “the common practice of conditioning freedom solely on whether an arrestee can afford bail is unconstitutional.” The effect of this ruling is that judges in California criminal courts must favor pretrial release and consider a person’s ability to pay before setting bail.
This decision upheld a state court of appeal decision that allowed Kenneth Humphrey, a retired shipyard laborer, to be released with an ankle monitor because of his inability to afford bail. Humphrey was charged with robbery and burglary after being accused of stealing less than $10 and a bottle of cologne from a neighbor. Humphrey was 63 and the neighbor 79 at the time of the alleged crime.
Humphrey, who had a criminal record, had his bail set at $600,000. It was reduced to $350,000, which helped little since Humphrey could not afford this amount – $35,000, the amount representing 10% of the bail amount that bail bondsmen require.
The court noted that pretrial defendants are jailed more often in large California urban counties than they are anywhere else in the country. The high cost of bail in California is the primary reason. The median bail amount in California is $50,000, more than five times the median amount of the entire United States.
This ruling will undoubtedly result in more people being released without bail before trial. Only when “clear and convincing” evidence exists that there is no other way to protect the public and ensure the defendants’ return for court appearances may a judge impose bail on a criminal defendant in California.
Justice Cuellar added that “[O]ther 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 dealt a considerable blow to California’s bail industry. A national coalition of bail agency groups sponsored Proposition 25, another November ballot initiative, as a means of attempting to thwart any changes in California’s bail law. However, experts say that bail in California criminal cases has been “ridiculously high” for too long.
Prior to this ruling, California judges decided to set bail based on set criteria, defendants’ criminal records, and the seriousness of the charged offenses. These decisions failed to consider whether the accused could afford bail. As would be expected, many thousands of defendants in California were forced to remain in jail solely because of financial reasons.
While bail schedules remain in effect, those accused of crimes are entitled to bail hearings within 48 hours after their arrests and may argue that they cannot afford the set scheduled amounts. This may result in freedom for some after 48 hours in jail.
John Patrick Dolan is a California State Bar Certified Specialist in Criminal Law, the highest achievement awarded by the State Bar of California to attorneys in the field of criminal law. The advice, guidance, and representation of experienced criminal defense counsel may be crucial to achieving the best possible result in any criminal matter. John Patrick Dolan has forty years of criminal defense experience. Contact Dolan Law Offices today at 760-775-3739 or 562-824-4007 to discuss your situation or find out more online here.