Does California still have bail?
California Does Away With Cash Bail For Those Who Can’t Afford It
In California, the state Supreme Court has ruled to end cash bail if a defendant can’t afford to pay. The decision centers around the case of retired shipyard worker Kenneth Humphrey. In 2017, he was arrested and accused of stealing $7 and a bottle of cologne from his San Francisco neighbor. The court set bail at $600,000 and later reduced it to $350,000. Humphrey couldn’t afford to pay that. And now the California Supreme Court has written that, quote, “conditioning freedom solely on whether an arrestee can afford bail is unconstitutional.”
Katherine Hubbard has worked on Humphrey’s behalf since the case’s initial filing. She’s an attorney at Civil Rights Corps. Welcome to ALL THINGS CONSIDERED.
KATHERINE HUBBARD: Thank you, Ari.
SHAPIRO: This case doesn’t totally eliminate the cash bail system in California. Tell us what the ruling means.
HUBBARD: That’s right. This decision means that presumptively innocent people in California can no longer be jailed while awaiting trial solely because they are unable to pay money bail, so that means that the trial courts of the state have to consider an individual’s ability to pay. And it says that they can’t set bail in an amount that a person can’t afford unless they find that no other less-restrictive alternative conditions of release can reasonably assure that person’s appearance in court or the safety of the community. So it does allow money bail in that limited circumstance.
SHAPIRO: And why did you view this as such an important issue?
HUBBARD: Well, this is an important issue because this decision should substantially reduce pretrial detention in California, and that’s really important because pretrial detention often has devastating consequences for a person’s life. It often means loss of a job or loss of housing. It can mean loss of custody of children, and it also has demonstrable negative impacts on a person’s case. We know that people detained pretrial are more likely to plead guilty, to be convicted and to receive longer sentences than people who are free pretrial. And because money bail disproportionately affects Black and brown communities, these negative impacts are concentrated on those communities. So reducing pretrial detention will have really significant impacts in terms of racial justice and ending mass incarceration.
SHAPIRO: California is not the first state to move in this direction, and some have gone even further. Illinois has abolished cash bail entirely. California being the most populous state in the U.S., do you think this indicates a national shift?
HUBBARD: I think it definitely indicates a national shift. And the legislature now has the opportunity to go even further in California towards ending pretrial detention in the way that Illinois has by completely eliminating the use of money bail. And the Care First Coalition is working across the state on changes to transform this system of money bail in California.
SHAPIRO: And just in our last minute, I want to ask you about your client Kenneth Humphrey, who was released with electronic monitoring after a similar decision in a lower court. So he’s not been in jail all this time, but what has he said about the Supreme Court decision?
HUBBARD: He’s thrilled with the decision. He – you know, he’s such an important example of why pretrial release is so important. He has done everything the court asked of him and more while he’s been on pretrial release and has, you know, had his ankle monitor removed and is a thriving member of the community and is just so proud to have his name on this important case. So he’s thrilled, and we’re thrilled for him.
What conditions can be placed on bail?
Courts can grant conditional or unconditional bail.
If a court grants conditional bail the defendant must abide by restrictions set down by magistrates or a judge.
Conditional bail can be used to reduce the risk of the defendant committing further offences, interfering with witnesses, absconding or for their own protection.
Conditions that can be imposed include a curfew, a requirement to surrender a passport, an electronic tag, a requirement to report to a police station, or not to drive.
The courts can also impose a surety or security requirement as an insurance against a defendant fleeing.
What is a surety and what happens if the defendant flees?
A surety or sureties will put a sum of money in the hands of the court as a guarantee that the defendant will not abscond during a case if they are granted bail.
The sum of money or value of assets required to grant a defendant bail will be decided by the court.
If the defendant does flee the surety will forfeit the money or asset.
The surety will have an opportunity to tell the court why they should not lose the entire sum, but the starting point is that the whole amount should be deducted.
Former Lord Chief Justice John Widgery QC said: “[T]he surety has seriously entered into a serious obligation and ought to pay the amount which he or she has promised unless there are circumstances in the case, relating either to means or to culpability, which make it fair and just to pay a smaller sum”.
