By: Frances Prizzia | Uncategorized

March 25, 2021, will go down in history as a landmark day in the fight for criminal justice reform. The California Supreme Court unanimously held that California’s current bail system violates the state and federal constitutions.

The decision in In re Humphrey was the result of a challenge to a lower court’s 2018 decision that held that the current system’s failure to consider a defendant’s ability to pay when setting bail violated the defendant’s right to due process and equal protection. Writing for the unanimous court, Justice Mariano-Florentino Cuéllar stated, “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 — the accused’s ability to post the sum provided in a county’s uniform bail schedule.”

Until now, bail was generally set by the judge simply looking at the charge against the defendant and then consulting the County Bail Schedule, which sets presumptive bail amounts based on the charge. Bail exists to accomplish two primary functions: protection of the public and assurance of the defendant’s appearance until the case is resolved. In practice, what this has meant is that a poor person charged with a non-dangerous/violent felony or even a misdemeanor was likely to be held in pre-trial custody simply as a result of their inability to come up with enough money to bail out, while those with financial means were able to post bail on serious, violent felonies.

The Court’s decision still allows a court to deny bail altogether if necessary to protect public safety but requires a high standard be met: that no combination of less restrictive conditions can satisfactorily ensure the safety of the public. When, however, bail is deemed appropriate, courts will now be required to consider an individual defendant’s financial circumstances in setting appropriate bail. In short: people may not be jailed pre-trial simply because they are unable to afford bail.

How this will all play out remains to be seen. There are big unanswered questions remaining as to how the ability to pay will be demonstrated. For instance, can a court consider a young defendant’s family’s financial condition or must it focus solely on the assets of only the defendant? What evidence will suffice to meet the “clear and convincing” standard required to detain someone pre-trial without bail based on public safety or flight concerns?

These questions are likely to be litigated for several years to come in the trial and appellate courts of the state. The fight continues, but this decision is a monumental step in the right direction.

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