California Supreme Court Says Keeping People Locked Up Just Because They Can't Make Bail Is Unconstitutional

from the forgetting-all-about-the-presumption-of-innocence dept

Bail can no longer be used to keep still-presumed-innocent people locked up in California. In a unanimous decision [PDF], the state’s Supreme Court has declared keeping people locked up just because they can’t afford bail is unconstitutional.

The decision doesn’t entirely eliminate bail — it can still be used in some cases — but it cannot be the default operating mode for handling arrestees. The court starts the opinion by pointing out there’s a big gap between principle and practice when it comes to bail. The state has a compelling interest to use bail to insure trial appearances and provide public safety. That point isn’t being argued.

What’s actually happening is the state is regularly depriving arrestees of their freedom by demanding cash bail in nearly every case, whether or not it addresses these compelling interests.

In principle, then, pretrial detention should be reserved for those who otherwise cannot be relied upon to make court appearances or who pose a risk to public or victim safety. […] But it’s a different story in practice: 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 — on the accused’s ability to post the sum provided in a county’s uniform bail schedule.

What should be an individualized examination of an arrestee’s threat to the public safety or unwillingness to further participate in their own prosecution has been cast aside in favor of demanding bail in almost every case. This default option sets up two tiers of rights, with greater rights (freedom being at the top of the list) handed to those who can afford to bail themselves out.

It’s not like the government doesn’t have other options that serve its interests. It doesn’t always have to be cash. It can be almost anything else that allows the state to keep an eye on arrestees while still allowing them to enjoy their freedom until their day in court.

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.

If the state wants to stay constitutional when considering bail, it needs to do more than set an amount and see if the arrestee can pay it. First, the court says, trial courts must assess arrestees’ ability to pay bail and may not send the person back to jail just because they can’t.

If there are more urgent public safety concerns, the state can keep an arrestee locked up. But it has to prove to a court an extreme measure like this is justified.

In order to detain an arrestee under those circumstances, a court must first find by clear and convincing evidence that no condition short of detention could suffice and then ensure the detention otherwise complies with statutory and constitutional requirements.

Anything short of that violates rights.

Allowing the government to detain an arrestee without such procedural protections would violate state and federal principles of equal protection and due process that must be honored in practice, not just in principle.

The damage done by an always-on bail system is immeasurable. It can destroy lives. And it costs taxpayers a lot of money while providing very minimal gains in public safety. We, as a nation, lock up millions of innocent people every year. The stats are staggering.

On any given day, nearly half a million people — none of whom has yet been convicted of a charged offense — sit in America’s jails awaiting trial. (Crim. Justice Policy Program, Harvard Law School, Bail Reform: A Guide for State and Local Policymakers (Feb. 2019) p. 1 [“increases in pretrial detention rates are ‘responsible for all of the net jail growth in the last twenty years’ ”].) This represents nearly 20 percent of the world’s pretrial jail population. (Id. at p. 7.) Just six California counties (Alameda, Fresno, Orange, Sacramento, San Bernardino, and San Francisco), for example, spent $37.5 million over a two-year period jailing people who were never charged or who had charges dropped or dismissed.

Decreasing the number of people locked up prior to being charged by altering the contours of the bail system is win-win. It reduces the chances an arrestee will see their life fall apart while they’re still waiting for their due process to kick in and it limits the amount taxpayers have to pay to keep people only accused of a crime locked up. Public safety is still a consideration in bail cases, but the government will have to provide some evidence to back its claims an arrestee is too dangerous to be given their freedom back until their case is called.

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Comments on “California Supreme Court Says Keeping People Locked Up Just Because They Can't Make Bail Is Unconstitutional”

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25 Comments
This comment has been deemed insightful by the community.
Anonymous Coward says:

Re: Correction?

… people arrested usually sit in jail for 12-72 hours before even being charged (or case dismissed, or Bail set) by a formal judicial review (Arraignment).
Conviction is usually a separate judicial process over weeks/months.

Being arrested means some jail time, even if the person is totally and obviously innocent.

Bigger problem than Bail is the huge number of casual "Arrests" made by street cops based only upon their personal opinion and mood.
A judicial warrant should be required for most all arrests, unless the cop has direct first hand evidence of an immediate threat to public safety.
U.S. police did not have blanket arrest-authority in the earlier days of the nation — arrest & seizure authority was strictly a judicial judgement power.

Over 90% of criminal cases are settled by the corrupt judicial practice of "Plea Bargaining’ where the government coerces defendants into a guilty plea in exchange for reduced sentencing punishments.
If you get arrested — it’s very unlkely you will betreated in a fair and constitutional manner, especially if you are poor.

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Melvin Chudwaters says:

Re: Re: Correction?

There’s no philosophical or practical reason we couldn’t make plea deals illegal.

Some prosecutors claim that it allows them to punish the guilty who, for whatever reason, might be acquitted at trial. That they can pursue cases that are strong, but not strong enough to guarantee conviction.

Even if this were true, that applies to what, 1% of their case load? If it was a big issue, we could even restrict them to offering plea deals to no more than some small fraction of cases (from 1% maybe up to 5%, though I’d lean towards the lower end).

When I was on grand jury last year, the DA bragged that they see about 4500 cases per year, but only 30 ever go to trial. (He said it so glibly, as if this was something to be proud of.)

If we restricted/prohibited plea deals, these courts would not have the manpower to actually try these cases. Sure, a court that does 30 trials might manage 60 or even 90 if they hustle, but they couldn’t do 4500. Perhaps that would be because they really need to do 4500 trials and are understaffed (at which point we could make the argument they need more staffing… and fix that problem). Or perhaps, we’d discover they were processing cases that should never have been brought at all but that they could bring anyway because plea deals remove any practical limits to stomping on the gas pedal.

And at that point, we could apply true pressure to them to stop bringing those cases that shouldn’t be brought. More likely, just prohibiting the plea deals would act as that pressure.

It’s just one of many reforms needed (and desperately) in the criminal justice system.

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Upstream (profile) says:

Re: Re: Re: Correction?

Amen! You got my vote. But it will be a hard sell because it removes power from prosecutors, and because many of the legislators and governors, etc, that would need to be on board are former prosecutors themselves.

We need to get rid of the prosecutor -> politician -> legislator -> governor pipeline, too. It does much to warp the entire governmental mindset.

Anonymous Coward says:

Re: Re: Re: Correction?

Some prosecutors claim that it allows them to punish the guilty who, for whatever reason, might be acquitted at trial. That they can pursue cases that are strong, but not strong enough to guarantee conviction.

In other words they want to administer vigilante justice, with all the problems that brings.

Anonymous Coward says:

Re: Re: Re: Re:

… and of course you two are ignorant of the actual bail treatment of the Jan 6th "insurrectionists".
DOJ prosecutors denied them bail even though most all of them were charged with merely non-violent misdemeanors –but likely to spend months in pre-trial jail without bail.
Federal court of appeasls just reversed that DOJ action and berated the DOJ prosecutors.

sumgai (profile) says:

Re: Re: Re:2 Re:

Speaking of ignorance….

Prosecutors have no say in bail approval or denial – that’s up to the judge. A simple thing called an arraignment takes place at the next opportunity after the arrest, and thereat the prosecutor can make his case (or hers), and the judge will decide the risk factor. (I can’t speak for Washington D.C., but in some jurisdictions, the judge might rely on other sources for info before making that determination.) If the prosecutor doesn’t like the judge’s order, he or she can appeal to a higher court, but he or she can’t simply ignore it and keep the alleged perpetrator incarcerated…. in the name of public safety, of course. Doing so tends to earn some one-on-one time with the judge, and not of the fun-and-games variety.

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Melvin Chudwaters says:

Re: Re: Re: Re:

I don’t consider the comparison valid or constructive.

Let’s fix bail. Worrying that in the past bail was used more punitively towards one group rather than another just muddles the issue and might waste political capital that could be used to fix the problem.

Or instead of that, I guess you could continue to whine about Trump because it’s gratifying and waste whatever chance you had of making a difference.

PaulT (profile) says:

Re: Re: Re:2 Re:

"I guess you could continue to whine about Trump"

Yeah, why whine about a guy who gaslighted his supporters to such a degree that they stormed the Capitol and murdered people because they believed his lies about democracy, who then were left to leave the building peacefully in stark contrast to the peaceful protestors who were tear gassed so he could make a half-assed photo op?

"waste whatever chance you had of making a difference"

Generally speaking, a person making a comment on a tech blog doesn’t get to directly influence US policy. Fortunately, many people do other things at the same time and the actions they take outside of this comment section might have other effects.

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Public benefit says:

Tim why you are always so anti business, I mean don’t you think about all those poor poor businesses which supply the jails, with things like food and cleaning materials. Less inmates would mean less resources used. Would mean less paid to businesses.

Offcourse the only logical conclusion is to keep more people in jail in order to benefit the -rich- erm I mean the economy which is totaly just an other word for the public, really, honestly, no doubt, noey sir.

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Melvin Chudwaters says:

How insane is it that though I’ve seen variations on this article a dozen times in the last year or two, none ever mention the 8th amendment? You know, the one prohibiting excessive bail specifically?

It seems to me if bail isn’t a punishment (and it can’t be, they haven’t been tried let alone convicted yet), then it must be means tested. Any amount that requires the use of bail bonding or even loans/credit would seem to be prohibited outright (since that turns bail into a fine… the court will return the money should they show for trial, but if they have to resort to bail bonding then the money is never returned and is effectively a fine).

Every time you see some murderer told $500,000 bail, you need to be angry. Either that person should have bail denied outright, or it should be a far lower amount.

This comment has been deemed insightful by the community.
Haywood (profile) says:

Bail in general is a racket

I never really gave it much thought, until my youngest son was detained (on a charge that turned out to be bullshit), in a town about 20 miles away. I went to get him out, & was told that I couldn’t do it there, & had to go back to my town, (the county seat), to complete the transaction, then return to the town where he was held to show the receipt, and secure his release.

That got me thinking about the fate of people who didn’t have a person on the outside with access to sufficient cash, a car and the time off during the day to do all this running around to get them out. It took me 1/2 a day to get him out, & I’ll bet there were hundreds of folks around the state who were behind bars just due to the complex process to let them out, even if they had the money it would take on them when apprehended.

This comment has been deemed insightful by the community.
Upstream (profile) says:

Re: Bail in general is a racket

Bail is not the only component of the law enforcement / prison (jail) / industrial complex that is a racket. Most all components of this system have devolved into rackets: bail bond services, communication services, food services, medical services, transportation services, clothing services, maintenance, equipment, supplies . . . . Basically everything involved is paid for by either the taxpayers, the prisoners themselves, or their family / friends. That is why the system has evolved to arrest so many people and keep them locked up as much as possible and for as long as possible.

The current trend toward some minor bail reform is a good, but small, step in the right direction. However, it, and all other reforms to the law enforcement / prison (jail) / industrial complex are being fought by all the beneficiaries of the status quo: the police, prosecutors, bail bondsmen, and scores of various contractors and suppliers.

In some places where bail reform has been enacted, judges are increasingly rendering the reform moot by denying bail entirely for most defendants. They are afraid of the Willie Horton effect.

There is a lot to be said for the concept that prison (jail) is for people we are afraid of, not people we are mad at. But it takes a lot of political courage to support that kind of concept, and, as others have mentioned, political courage is in critically short supply these days.

Wayfair says:

It's not a bug, it's a feature

It’s all part of the greater design. The government stores people in pre-trial detention centers to 1. impress upon the citizen they’re powerless against the mighty, slow moving government; 2. restrict the citizen access to resources that will help the citizen know and assert their rights, including their cash, private communications, and paperwork; 3. endanger their personal safety through intimidation and violence from inmates and jailers; 4. impress upon the citizen the only way out is by pleading guilty, which ends pre-trial detention but secures a conviction and terms of punishment without a trial; 5. afterwards, treat the citizen as a dirty criminal deserving harassment for the remainder of their lives.

Tanner Andrews (profile) says:

Re: It's not a bug, it's a feature

It works better than ever now. Over a year ago, the courts suspended “speedy trial” requirements due to an emergency. That emergency has not abated, and so people are now kept in jail without trial for what appears to be unlimited time.

Well, until the end of the emergency. You tell me when it will be over and we will both know. Speedy was suspended on 13-Mar-2020 (Fla Supreme Court Administrative Order 2020-013), at which time the numbers were below 100. This was called an emergency; the numbers now are some 10-50x that now. So either we have to change what is an emergency, or we have to accept perpetual emergency (Fla Supreme Court Administrative Order 2020-023 rev 7).

In the mean time, the plea bargain process continues. It saves prosecuting a lot of embarrassing cases, such as the naked cowboy'' case (Volusia #2021-302143-MMDB) (plea to time served forresisting”).

That One Guy (profile) says:

The idea of bail strikes me as an absurd one at it’s core, as either you believe that someone will not show up or is too dangerous to the public to let free before trial, in which case bail is nonsensical because no amount of money should change that, or you don’t believe either of those things in which case charging them to not be locked up until trial becomes nothing more than legalized extortion.

In neither case does bail make sense and as such in neither case should it be applied, so I say toss it entirely as a concept.

Tanner Andrews (profile) says:

Re: [concept flawed]

The idea is that if you put up some sort of security, you are more likely to show up. A pledge of home or chattels can have that effect. The threat of a bail bondsman or bounty hunter dragging your body in after you FTA can also have that effect. So would the threat of cops serving a capias.

Of course, realistically, the overwhelming majority of people should be ROR’ed because there is no question that they will show up barring circumstances beyond control (e.g. late due to traffic). But there are some where we might indeed have concerns which can be mitigated with bail.

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