“Affordable Bail” Does Not Protect Public and Victim Safety

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If an arrestee can be “admitted to bail,” (meaning pretrial release is not precluded), California law authorizes four different methods of pretrial release, only one of which has a monetary requirement. Those four methods include (1) money bail; (2) release on own recognizance (“OR”); (3) OR under supervision; and (4) pretrial diversion. At an arrestee’s first court appearance, a judge will decide if he or she should be released on OR (with or without supervision) or on money bail.

The California Supreme Court’s Humphrey decision announced yesterday initially acknowledged OR as a type of pretrial release, but then they completely ignored it as they delved right into the unconstitutional disparities of money bail. The court also glossed over the fact that Humphrey requested OR release under supervision twice and was denied twice. The trial court denied his request for OR release due to the seriousness of the crimes committed (first-degree residential robbery, first-degree residential burglary, inflicting non-great bodily injury on an elder or dependent adult, and theft from an elder or dependent adult PLUS three prior strikes), the vulnerability of the victim (a 79-year-old man), and on the recommendation against OR release from pretrial service’s Public Safety Assessment Report. In addition to public safety concerns, the trial court was also concerned that Humphrey was a “flight risk.”

What is OR release? Had the court taken the time to examine it in a bit more detail, the public would better understand that it is a discretionary non-monetary alternative to cash bail contained in Article I, section 12 of the California Constitution.

The OR clause was added to the California Constitution in 1974 by Proposition 7 upon the recommendation of the California Constitutional Revision Commission as a “ ‘desired alternative to the bail system, which frequently works an injustice on those who cannot afford to post a bail bond.’ ” (People v. Standish, (2006) 38 Cal.4th 858, 890.) The Commission further stated that the “ ‘recommendation will bring constitutional language more in line with actual practices in the release of criminal defendants and more consistent with contemporary concepts of social equity and fundamental justice for all persons, regardless of their economic status.’ ”

In cases involving certain serious felonies (like Humphrey’s), a hearing must be held in open court before an arrestee can be released OR pretrial. (Pen. Code, § 1270.1; Pen. Code, §§ 1318-1319.5) At this hearing, the court is to consider “the potential danger to other persons, including threats that have been made by the detained persons and any past acts of violence. The court shall also consider any evidence offered by the detained person regarding his or her ties to the community and his or her ability to post bond.” (Pen. Code, § 1270.1, subd. (c).) If a judge concludes that release on OR is appropriate under the circumstances of the case, an arrestee can be released pretrial regardless of financial status. In so doing, a court can impose reasonable conditions designed to prevent and deter further crime. (Pen. Code, § 1318, subd. (a).)

If OR release is a valid, non-monetary option that allows for pretrial release of an arrestee after a judge evaluates the danger to the public and/or victim, plus the probability that the arrestee will appear at a future court hearing, why is it necessary for the court to now mandate trial courts to also consider an arrestee’s ability to afford money bail AFTER its already been determined that the arrestee is too dangerous or too much of a flight risk to be released on OR with nonfinancial conditions of release?

Let me get this straight – according to the California Supreme Court, if a judge decides that a dangerous and/or “flight risk” arrestee should not be released on OR after determining that there are no conditions of release that can be imposed that may “reasonably protect” the public/victim or “reasonably assure” presence at trial, then the judge can set money bail BUT the amount of bail must be set “at a level the arrestee can reasonably afford.”  The arrestee then posts bail and is released pretrial. Sure – money bail helps motivate an arrestee to appear in court, but how does “affordable bail” protect public/victim safety? The answer is simple – it doesn’t.