Can't Afford Bail and Stuck in Jail? Not Anymore in California
By Bob Egelko and Annie Ma
The bail system in California is set to undergo a major shakeup, starting next week, after state Attorney General Xavier Becerra announced Tuesday that he would not appeal a court ruling that prohibits holding criminal defendants in jail because they can't afford to pay their way out.
"Bail decisions should be based on danger to the public, not dollars in your pocket," Becerra said at a Sacramento news conference. He said keeping defendants locked up before trial, simply because they can't pay the amount set by the judge for pretrial release, "entrenches people in a cycle of poverty," while wealthier defendants charged with the same crimes are set free.
The ruling was issued Jan. 25 by the First District Court of Appeal in San Francisco. Becerra's decision not to seek review by the state Supreme Court means the appellate decision will become final on Saturday, 30 days after it was issued, and binding on trial courts throughout California.
Judges will then have to change their long-standing practice of setting bail in fixed amounts determined by the crimes charged and the defendant's record. The ruling does not prohibit monetary bail, but says it must at least be set at levels a defendant can afford, unless the judge cites evidence that the defendant is too dangerous to release before trial.
The ruling also changes the political landscape on the issue.
Legislation sponsored by state Sen. Bob Hertzberg, D-Van Nuys (Los Angeles County), and Assemblyman Rob Bonta, D-Alameda, that would have largely replaced cash bail with pretrial monitoring and other safety measures, cleared the state Senate last year, but has been held up in the Assembly to await negotiations with Gov. Jerry Brown and others who have concerns about the bill or are opposed to it.
Now foes of the cash bail system have a new bargaining chip -- either pass a new law or leave a ruling in place that dramatically changes the current system. California's chief justice, Tani Cantil-Sakauye, has also criticized cash bail and appointed a task force that has recommended changes.
Hertzberg said the court decision, Becerra's action and Cantil-Sakauye's support "overwhelmingly make the case for bail reform" and for passage of his bill.
The chief supporter of the system has been the bail bond industry, which contends cash bail is the best way to assure a defendant's appearance in court. Bail bond companies post the full amount of bail in exchange for a 10 percent fee.
Jeffrey Clayton, executive director of the American Bail Coalition, an association of insurance companies that underwrite bail bonds, pointed out that Hertzberg's bill is opposed by police chiefs and prosecutors as well as bail bond companies. "I don't think anybody's come up with too great of a solution just yet," he said.
Clayton said Becerra's decision was disappointing, but didn't necessarily doom the current system.
"Courts are going to have to evaluate (bail) on a case-by-case basis," he said.
Becerra was criticized more harshly by a political rival, Steven Bailey, a retired El Dorado County judge who is running for attorney general as a Republican in the June primary. Becerra, a Democrat, was appointed attorney general by Gov. Brown to replace Kamala Harris after her election to the U.S. Senate in 2016, and is also entered in the primary along with another Democrat, Dave Jones, now the state's insurance commissioner.
Bailey called Becerra's position on bail "dangerous," and said, "It is loud and clear Becerra cannot be trusted to put public safety ahead of politics."
But Becerra said his position promotes public safety.
"Today's bail system doesn't make you safer, because if you've got the money and you're dangerous, you still get out," he told reporters.
Support for cash bail, meanwhile, has been declining nationwide. Federal courts have moved away from it, and a number of other states have already passed laws similar to the Hertzberg-Bonta proposal.
In nine coordinated rallies outside county courthouses around the state Tuesday, public defenders and activists joined to call for an end to the bail system.
"Money bail has nothing to do with public safety and everything to do with coercing guilty pleas from poor people," who have no other way to get out of jail before trial, said Chesa Boudin, a deputy San Francisco public defender.
In a separate case, a federal judge in Oakland has cleared the way for a trial on the constitutionality of the bail system in California. Bail bond companies have been allowed to enter that case and defend the law, but they were unable to take part in the state appellate case in San Francisco.
That ruling involved Jeffrey Humphrey, charged with entering the apartment of a 79-year-old man last May, threatening to put a pillowcase over his head and stealing $5 and a bottle of cologne.
Humphrey, 63, a retired shipyard worker who lived in the same building, had been addicted to drugs most of his life, was enrolled in a rehabilitation program and had felony convictions from 1992 and earlier. A judge initially set his bail at $600,000 based on the charges and Humphrey's record, and later lowered it to $350,000 based on his willingness to undergo treatment. Humphrey could not afford the reduced amount and remained in jail.
"A defendant may not be imprisoned solely due to poverty," the appeals court said last month in ordering a new bail hearing.
The trial judge must determine how much bail Humphrey can afford and whether he can be safely released without bail, Presiding Justice J. Anthony Kline said in the 3-0 decision. Higher bail is allowed only if the judge finds, by "clear and convincing evidence," that there is no other way to protect the public or to assure Humphrey's return to court after his release, Kline said.
The ruling is not yet final. So far, only one Superior Court judge in San Francisco is following its standards, said Public Defender Jeff Adachi at Tuesday's rally outside the city's criminal courthouse. Adachi declined to identify the judge.
The Humphrey decision "is the law today," Adachi declared. "That's why we're here today. To demand accountability, that the judges follow the
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