Should our current cash bail system in California be eliminated where the court must consider the accused’s ability to pay?
There is a battle brewing amongst criminal practitioners on the proper role of bail within California’s criminal justice system. Currently, the California Constitution gives a person an absolute right to bail except in rare cases and prohibits imposing excessive bail. It also sets forth factors the court shall take into consideration in determining the amount of bail required. For instance, the court must consider ‘the seriousness of the offense charged, the previous criminal record of the defendant, and the probability of his or her appearing at the trial or hearing of the case.’ The victim and public safety are the primary consideration in bail decisions. What is not considered is the defendant’s financial circumstances and whether he/she can afford to post bail.
That issue was addressed in 2018, by the First District Court of Appeal in In re Humphrey. In Humphrey, the defendant was charged with several felonies including first-degree robbery and first-degree residential burglary. Bail was set in the amount of $600,000 based on the seriousness of the alleged crime but later reduced to $350,000. In making its order, the court did not consider the defendant’s financial circumstances or whether less restrictive alternative conditions of release existed.
Ultimately, the Humphrey Court reversed the lower court and held that a court ‘may not order pretrial detention unless it finds either:
- that the defendant has the financial ability but failed to pay the amount of bail the court finds reasonably necessary to ensure his or her appearance at future court proceedings; or
- that the defendant is unable to pay that amount and no less restrictive conditions of release would be sufficient to reasonably assure such appearance; or that no less restrictive non-financial conditions of release would be sufficient to protect the victim and community.
On the ballot this year is Proposition 25 which seeks to completely do away with cash bail and replace it with a “statewide risk assessment program.” With this assessment program, a person would be released unless a judge determines community safety would be at risk or a person is likely to flee. In making that decision, the judge will be guided by computer generated algorithms which would produce a public safety or flight risk score for defendants.
Those in favor of this proposition argue that it eliminates the disparity between the rich and poor. They suggest that Proposition 25 makes us safer by ensuring jail space is reserved for those who are actually dangerous and shouldn’t be released, instead of the poor. Opponents of the proposition argue that the algorithms make risk predictions based on factors such as criminal history, where a person lives and wealth status which will disproportionately affect minorities. Opponents favor the approach established in the Humprey case.
This is an issue that has split many people including those in the criminal defense community. Most people agree that a system which favors the rich over the poor is an unfair system. Equally, a system which unduly targets minorities is unworkable. However, there is strong disagreement on which approach best serves the community. Are we replacing one problem with another by changing the system or are we correcting an inequity that has existed for far too long? Are we relying too much on a mathematical formula to determine personal factors or are we removing impediments to releasing the less fortunate? Will the community be more or less safe by relying on a system designed to focus on risk factors?
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