California top court strikes blow against cash bail

San Francisco, California, United States — The top court in California last week issued a ruling that advocates for criminal justice reform in the United States are calling a “landmark victory” for efforts to confront racial and economic inequities.

In a unanimous March 25 decision, the California Supreme Court said courts cannot require individuals charged with a crime to pay cash bail as a condition of release before trial unless they consider the person’s ability to pay.

“No person should lose the right to liberty simply because that person can’t afford to post bail,” the court found. “The common practice of conditioning freedom solely on whether an arrestee can afford bail is unconstitutional.”

The decision comes as the US is examining structural racism in its criminal justice system, spurred in part by last year’s mass protests demanding an end to racial injustice and police violence against Black people.

“This is a banner decision,” Andrea Woods, staff attorney with the American Civil Liberties Union (ACLU) Criminal Law Reform Project, told Al Jazeera. “Organisations have been fighting to bring attention to the terrible harm done by cash bail for years, and this is a validation of their efforts. It’s an enormous victory.”

Indeed, while several civil rights and criminal justice reform groups welcomed the court’s decision, many tempered their enthusiasm with the caveat that scrutiny and public attention would be necessary to ensure the recommendations are implemented fairly and consistently.

“We welcome this decision, while also recognising that court rulings alone aren’t enough to change a culture,” Katherine Hubbard, a senior attorney at Civil Rights Corps who worked on the case, told Al Jazeera.

By declaring that someone cannot be kept in pre-trial detention simply because they cannot afford bail, the court has shifted the burden onto judges and prosecutors, who must now provide “clear and convincing” evidence to demonstrate that pre-trial detention is necessary based on factors such as the risk of non-appearance or a threat to public safety.

The court also stated that pre-trial detention should be used only when alternatives that keep people out of the carceral system are not possible. Instead, authorities could consider other conditions of release such as electronic monitoring, regular check-in protocols, or community housing or shelter, the court said.

Re-examining ‘tough on crime’ philosophy

The ruling marks the most recent victory for an emerging coalition of organisations and officials re-examining the “tough on crime” approach to criminal justice that has sent California’s jail population soaring by 180 percent since 1970, according to a study by the Vera Institute of Justice, a nonprofit organisation that advocates for justice reform. The study also found that in 2015, 53 percent of California’s jail population were pretrial detainees, and racial disparities were startling: while six percent of Californians are Black, they made up more than 20 percent of the jail population.

Cash bail has been singled out for criticism by reformers and civil rights groups, who say the policy discriminates against poor Americans, especially those from communities of colour. Bail payments are often required to get out of jail before a trial, and are paid back after the trial proceedings as a way of ensuring attendance. But many cannot afford the bail rates, and have little choice but to wait behind bars for their trial or pay a bail bond company to cover the payment. Bond companies charge up to 10 percent of the bail rate for the service.

California is notorious for its exorbitantly high bail rates, over five times the national median, according to the ruling.

The court’s decision upheld a state court’s finding that Kenneth Humphrey, a man in his 60s accused of stealing less than $10 from a neighbour, could be released with an ankle bracelet because he was unable to afford bail, initially set at $600,000 and then revised downward to $350,000. If Humphrey had gone to a bail bondsman, he would have had to pay around $35,000, regardless of the outcome of the trial.

Bail supporters accept ruling

Supporters of cash bail say it is an important tool that helps make sure people show up to their court dates.

However, the American Bail Coalition told Al Jazeera that the ruling would mean “more judicial scrutiny on cases when someone posts bail”, but that “those who are able to post bail will still be allowed to do so”. While previous bills would have abolished cash bail, industry groups seemed to accept the ruling, noting that while it will decrease the use of bail, it does not do away with it entirely.

Greg Totten, CEO of the California District Attorneys Association, said his group “has long believed that California’s bail system needs to be thoughtfully reformed” and “takes no issue” with the Supreme Court’s decision.

Previous legislation to abolish cash bail in California was met with bitter opposition from the state’s multibillion-dollar cash bail industry.

Last week’s ruling comes four months after Californians rejected Proposition 25, a ballot initiative that would have rolled back the use of cash bail in favour of risk-assessment tools that seek to determine whether or not an individual poses a threat to public safety.

Some progressive groups joined an unlikely alliance with law enforcement and money bail supporters to oppose the bill, citing concerns that risk-assessment tools contain biases that could replicate the very inequities reformers hoped to excise from the system.

“In some ways, I see this as more ambitious than previous legislation that would have banned cash bail because it instructs judges to explore alternatives to incarceration wherever possible,” California State Senator Scott Wiener told Al Jazeera about the Supreme Court’s decision.

Wiener co-authored SB 10, a bill that would have abolished cash bail. The bill passed, but the cash bail industry quickly worked to undermine it, and the law was ultimately undone when Proposition 25 failed to pass in the 2020 election. “For so long we’ve operated under the belief that we can solve our problems by throwing people in jail, and it just isn’t true,” said Wiener. “This is a recognition of that.”

Critics have long said the practice infringes on the rights of those who cannot afford to make bail payments; around half a million individuals who have not been convicted of a crime are held in jails across the US because they cannot pay their bail, according to the Prison Policy Initiative, a think-tank that focuses on criminal justice and mass incarceration.

While the court’s ruling does not abolish cash bail, as SB 10 and Prop 25 attempted to do, many criminal justice advocates say it is groundbreaking, nonetheless.

“I know what it’s like to feel sick with worry that you won’t be able to put together enough money to post bail for a loved one,” said Dolores Canales, an organiser with The Bail Project, which helps provide bail for those who cannot afford it.

“This is a huge deal and I welcome it,” she said. “But a lot of work remains to be done, and we have to stay vigilant.”