California High Court: Judges Must Weigh Ability To Pay Bail

Speaker 1: 00:00 Any unanimous decision last week, the California Supreme court ruled that keeping people behind bars simply because they cannot pay a set bail amount is unconstitutional voters. Last November defeated a measure to eliminate cash bail in California and replaced with a system of risk assessment and supervision. The Supreme court ruling does not eliminate bail, but restricts its implementation based on the resources of the accused. Joining me is legal analyst, San Diego attorney Dan Eaton, and welcome Dan to be with you now, cash bail has been used for years as a way of securing a defendant's appearance at trial. Why is it just now being found unconstitutional? Speaker 2: 00:44 The short answer is because the issue was funnily been keyed up to, uh, the state's high court. This is one of those issues as the court noted in its opinion, that's capable of repetition, but evading review in this particular case, what happened is the bail was initially set at $600,000, then lowered to $350,000. And then eventually, uh, the, uh, trial court, uh, uh, eliminated the cash bail and put the person on a, an ankle monitor. But this is really the first occasion for the California Supreme court, uh, to focus on this issue. And they have an, as you said in the open incorrectly eliminated cash bail, but they have put strict limits on it, particularly, uh, so that, uh, people can not be kept in pretrial detention, pending trial, simply because they cannot afford to pay the set cash bail. Their ability to pay has to be taken into account. Speaker 1: 01:37 And how will judges be able to determine if a defendant is not able to afford? Speaker 2: 01:42 Well? I mean, there, there are all kinds of evidence at affidavits and the like, as far as the, uh, defendant's ability to pay of the same kinds of considerations that go into the assignment of a, of a public defender, but all of that will have to be taken into account. And the court will also have to consider whether there are less restrictive alternatives, uh, to, uh, cash bail, not only to secure their attendance at trial, but also to protect the public and the victim. Well, okay then Speaker 1: 02:10 With no bond ensuring the defendants return for trial, how will the court monitor their release and get them back in Speaker 2: 02:18 Trial? You California Supreme court identified actually a number of alternatives. One is the ankle monitor that I think a lot of people are familiar with, but besides the ankle monitor, but there's also the issue of regular check-ins with a pretrial case manager, community housing, or shelter and drug and alcohol treatment, all of which track, uh, the, uh, the defendant, uh, while they are awaiting, uh, while they are awaiting your trial. The issue is really Morina that pretrial detention. Uh, so the court has some disadvantages and being able to, uh, help with, uh, preparing for of the defense and, and other issues as well, along those lines, Speaker 1: 03:00 Then there will still be offenses where there is no bail or release for defendants awaiting trial. Isn't that right? Yeah, Speaker 2: 03:06 That is correct. There are going to be some that's why, when you talk about this case is some people are talking about this as eliminating cash bail. That's not quite right. What it does is it sets a limits and says, well, you can't have this kind of a situation where a cash bail, uh, effectively results in a pretrial detention for those who are poor, even if they're innocent, uh, while, uh, cash bail, uh, is, uh, used, uh, if you're a wealthy defendant, you can, uh, go free pending a trial, even if you are guilty. And there's a disparity there, Speaker 1: 03:42 End of cash. Bail is a movement that's gaining strength across the country. Isn't it? Speaker 2: 03:46 Well, certainly there are certain jurisdictions or where this is coming into play. Obviously there was an attempt here in California last year, uh, with proposition 25, uh, to eliminate cash bail altogether. And the real, the, uh, the impetus behind that is because you don't want to have people behind bars, even if you're innocent, pending trial at which their Gulf will ultimately be determined only because they cannot afford, uh, the ability to post a bond and get out. That's why you are seeing in the nature of criminal justice reform, more and more attention being paid to this, even in the state of California, the state legislature, uh, Senator Bob Hertzberg of Los Angeles, who author proposition 25, which was defeated, is attempting to integrate this infra in re Humphreys ruling into legislation that is now, uh, pending, uh, at the state legislature. Speaker 1: 04:38 Uh, obviously the bail bond industry is against eliminating cash bail. How much power does that industry have? Speaker 2: 04:45 I, I, as, as you know, of course I don't practice in criminal law. Uh, but the fact is they are a stakeholder. There are a lot of stakeholders that are involved and it's really not just the acuity area interest or the monetary interest that the bail bondsman hold their important interests that also extend to public safety and victim safety as well, that are in play. But there is also this overriding interest in the individual defendants fundamental right to freedom. That's why this issue of due process and equal protection, this hybrid interaction of these two constitutional concepts came into play in deciding according to the California Supreme court justice quire a saying, look, if you're going to do it, there has to be really no other way that you could secure the defendant's attendance to trial and protect the public and victim event, a cash bail. And when you're going to do it, you've got to take into account the wealth of the particular defense. Speaker 1: 05:39 And another factor is, uh, California's high bails doesn't California have very high bails in comparison to the rest of the country. Speaker 2: 05:48 There was really a fascinating, uh, mentioned in Dutch justice quasars, a unanimous decision, as you said, indicating that depending on the jurisdiction, California's a bale, it can be five, 10 times or what is often the case in other jurisdictions. So there's this sense that it's more onerous than it needs to be. The judges are going to have to make an individualized assessment to see if that can't come down so that you don't have an effect, a kind of debtors prison for people we're awaiting trial on their charge, defenses charge offenses, by the way, that are presumed true for the purposes of doing this calculation. And that's one of the reasons the head of the California public defender's association has said the California Supreme court did not go far enough. Speaker 1: 06:30 And what does this ruling mean for people who are already being held in jail, awaiting trial, because they couldn't afford the bail set by the judge? Speaker 2: 06:39 Well, it means they're going to be subject to a rehearing, probably in these situations as to whether there are other alternatives that will secure their attendance to trial. And, uh, we'll also protect the public and the, uh, and to the victim. And you can expect that a lot of those people are going to pre released pending trial there. The judges are going to look at their criminal history, whether there is a, a history of compliance with court orders. There are a number of different factors that the California Supreme court has said. The judges will have to look at a new instead of using cash bail as a default, that effectively amounts to keeping, uh, the poor, uh, and accused, uh, in jail pending trial and a form of pretrial detention. Speaker 1: 07:22 I've been speaking with attorney Dan Eaton, a partner with the San Diego law firm of seltzer, Caplan, McMahon, and Vtech. Dan, thank you so much. Good to be with you.