How A Landmark State Supreme Court Ruling Changes How Bail Works in California

Until last week, if you were arrested for a felony in California and you couldn't make bail, you sat in jail.

That ended with the California Supreme Court's unanimous ruling last week that said it's unconstitutional to keep someone locked up merely because they can't afford bail.

Justice Mariano-Florentine Cuellar, who wrote the opinion, said keeping people behind bars who are unable to afford bail doesn't necessarily keep communities safe.

"Other 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," Cuellar wrote.

Over the decades, bail has skyrocketed in the Golden State. The median bail amount ($50,000) is more than five times the median amount in the rest of the nation (less than $10,000), according to the Public Policy Institute of California.

Bail is not going away

Bail is not going away. The court said judges may still set bail if prosecutors present clear and convincing evidence a person is a public safety risk or is unlikely to return to court for their trial.

But under the ruling, judges must consider a person's ability to pay when setting bail. More than 15,000 people are currently incarcerated in L.A. County. About 5,600 are awaiting trial. It's unclear how many might be released as a result of the ruling.

People who are arrested and charged bail typically pay 10% of the amount to a bail bond company, which posts a bond for the full amount with the court. For decades, the amount of bail in California has been closely linked to something called a bail schedule. It's sort of like the bail Bible.

Each county has its own schedule, set by that county's presiding judge. It lays out presumptive bail amounts for just about every felony.

For example, according to the 2021 Felony Bail Schedule for L.A. County, bail for injuring someone while driving under the influence is $100,000. For battery that causes an injury, it's $50,000, which is also the amount for second degree robbery.

In the wake of the Supreme Court ruling, it's unclear if the bail schedule will still be used, amended or eliminated.

While individual counties decide their own bail schedule now, there is a bill before the state legislature that would create a statewide schedule.

Detention without bail remains on the books

Under the state constitution, judges are able to detain people without bail if they're accused of committing crimes that fit into one of three categories:

• Capital crimes, which include multiple murders, torture murder, and sexual assault and murder;
• Violent felonies when a judge finds there is a substantial likelihood the person's release would result in great bodily harm to others;
• Felony offenses when a judge finds the person has threatened another with great bodily harm and that there is a substantial likelihood the person would carry out the threat if released.

Why advocates call the decision 'a step in the right direction'

The high court's ruling did not resolve tension between two sections of the state constitution, as some had hoped. Article 1, Section 12 limits judges' decisions to hold someone without bail to the above circumstances. Section 28 is broader and says "public safety and the safety of the victim shall be the primary considerations" for setting bail.

Nonetheless, L.A. District Attorney George Gascón praised the ruling, saying it "ends an unjust practice that favors the wealthy and punishes those with limited means."

"We cannot have equal protection under the law when fundamental aspects of our criminal justice system hinge so decisively on financial status," he said. But Gascón would like to see judges end the use of cash bail entirely, a goal of bail reform activists across California. Under their approach, people would be released with or without conditions, like electronic monitoring. The most serious criminals would be held without bail.

"I definitely see this as a step in the right direction," said Delores Canales, director of community outreach for The Bail Project. "It's an important decision in the fight to end cash bail."

Observers noted the court provided judges little guidance on how to determine whether someone presents a public safety risk and therefore should put up bail to be released --- beyond saying the evidence must be clear and convincing.

Unanswered questions

"There certainly are unanswered questions," said Cristine Soto DeBerry, executive director of the Prosecutors Alliance of California. "There will be a lot of individual decision making by judges."

"Cuéllar didn't go nearly far enough to talk about what the full scope of what public safety means," W. David Ball, a professor at Santa Clara University School of Law told Courthouse News.

The court's decision came in the case of Kenneth Humphrey, who sought release from the San Francisco jail, in part because of his financial status. Humphrey, 66, had been held for more than a year for robbery. A judge set bail at $600,000 because Humphrey had a criminal record.

In its ruling, the state supreme court ordered him released pending trial with an ankle bracelet and no bail.

The California Bail Agents Association praised the supreme court's ruling.

"We are pleased to see that the opinion has ended up being both thoughtful and fair to all sides," the organization's lobbyist David Quintana said in a statement. "The court's decision is a fair interpretation of the law."

The decision keeps the industry alive for now, although likely with significantly lower profits. The ruling comes a few months after an industry-backed campaign resulted in the repeal of a state law that would have replaced cash bail with a risk assessment test.