Press Coverage on CA Supreme Court’s Bail Ruling

Media coverage of yesterday’s unanimous the California Supreme Court ruling in In re Humphrey, mostly applauded the court’s holding that the Constitution requires judges to consider a suspect’s “ability to pay” when deciding if he can be released on bail.  The Associated Press story by Don Thompson was picked up not only by most California newspapers and broadcasters,  but by the Miami Herald,  U.S. News, the The Chicago Tribune,  The Baltimore Sun, NBC News and many more.   The ruling was characterized as “landmark” because the court added a requirement to the decision to set bail, not provided under state law, noting that setting a bail amount the suspect cannot afford “accords insufficient respect to the arrestee’s crucial state and federal equal protection rights against wealth-based detention as well as the arrestee’s state and federal substantive due process rights to pretrial liberty” (emphasis added).

According to the Court, conditioning bail on an arrestee’s ability to pay is a right provided by the U.S. Constitution.  The court cited several federal circuit rulings that appear to support its finding that, “The common practice of conditioning freedom solely on whether an arrestee can afford bail is unconstitutional.”  While Humphrey is a state supreme court ruling, it comes from the largest and most litigious state in the nation.  It is worth pointing out that California Attorney General Xavier Becerra and San Francisco District Attorney Chesa Bouden, gave cover to the court by either arguing in support of the defendant’s claim or declining to oppose it.  Other states such as Illinois, New York, Minnesota and Washington looking to inject more “social justice” into their criminal law will certainly cite the ruling as legal support for their efforts to abolish, or severely restrict bail.

The bail industry was quick to note that the ruling will turn more bail decisions into litigation. “The lens of due process is going to be on every bail, because prosecutors are going to have to prove, by clear and convincing evidence, a flight risk or danger” if they seek to keep a lower-income suspect in custody, said an industry spokesperson.

Other law enforcement groups offered nuanced responses to the ruling.  California Police Chiefs Association President Eric Nunez said no one should be jailed solely because they can’t afford bail, but “a rigid zero-dollar bail scheme shouldn’t prevent a judge from considering public safety risks for serious and repeat offenders.”  The California District Attorneys Association didn’t object and said prosecutors have long felt there should be thoughtful reform including on the financial issue.  Some even parroted the “woke” narrative,  “The research is clear, the negatives of cash bail fall disproportionately on Black and Brown communities without improving safety,” said Chief Probation Officers of California Executive Director Karen Pank.

But there was one advocate that did oppose it.  In its friend of the court brief the Criminal Justice Legal Foundation argued that judicially creating a new “ability to pay” consideration violates the Victim’s Bill of Rights Act, also known as Marsy’s Law, approved by California voters in 2008.  The Foundation pointed out that making cash bail contingent on a suspects’ ability to pay violates state law, which allows for considering the safety of the public and victim, the seriousness of the alleged crime, the suspect’s criminal record, and the likelihood that he or she will flee.  Judges already have the ability to release suspects on their own recognizance, Foundation attorney Kymberlee Stapleton said after the ruling.  “The money bail is there to ensure that they do come back for trial date, and they’re incarcerated to protect the victim or the public,” she said.  “It’s hard to tell what impact this will have on victim and public safety going forward.”

One thing is certain; even though the California Supreme Court has discovered that the “ability to pay” is a federal constitutional right, California does not have an Attorney General willing to appeal that holding.  Testing its validity will require some other state Attorney General, who is not a crusader for the “social justice” movement, to challenge a future ruling from his or her state supreme court which adopts California’s reasoning to add a similar requirement to reduce the number of arrestees held on bail.