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.