State Supreme Court says judges should consider ability to pay before setting bail


In an unusual move, the state’s Supreme Court ordered state judges to consider an individual’s ability to pay before setting bail in criminal cases, which could challenge the appeal of long standing on bail schedules set by each county.

The move is a boost to supporters of a campaign to remove cash bail from the criminal justice system and replace it with a system based on assessing a person’s risk of release before trial. Opponents of the cash bond have long said it punishes people not for wrongdoing but for their poverty and disproportionately harms people of color. They say California has the highest bail amounts in the country, listed in each county’s bail schedule – a document that sets out recommended bail amounts for all crimes.

The Supreme Court’s August 26 order was issued in an unlikely manner. The court is preparing to hear an appeal of a 2018 decision from a San Francisco appeals court that ruled on $ 350,000 bail, in the case of a man who has been charged with theft and Burglary for stealing $ 7 and a bottle of cologne from a 79-year-old violated due process and equal protection clauses of the United States Constitution.

The appeals court said the bail judge should have taken into account the financial resources of the defendant, Kenneth Humphrey, and considered alternatives to bail. When the state Supreme Court agreed to take the case in 2018, the impact of the appeals court ruling as “binding or precedent” on other courts was erased.

Humphrey’s lawyers asked the court in 2018 to restore part of the appeals court ruling that setting a bond without considering ability to pay violated the Federal Constitution. The court then refused.

But on August 4, Humphrey’s attorneys called again, citing two new reasons. First, they said state judges “routinely fail to determine the ability to pay of those arrested” before setting bail. Second, the COVID-19 pandemic poses a serious threat to the health of those in prison and in prison, where confined quarters and difficulties with social distancing allow the virus that causes the disease to spread rapidly.

This time, the High Court agreed, without further comment, and ordered the trial judges to consider a defendant’s ability to pay. Katherine Hubbard, one of Humphrey’s attorneys, said the ruling means judges can no longer just look to the bail schedule when considering a case.

“Our position is that most people can be released safely, before trial,” she said. Judges can design monetary conditions that will achieve the goal of bail – to ensure someone shows up for their next hearing, she said.

San Diego Superior Court Judge Eugenia Eyherabide, supervising criminal judge at the downtown courthouse, said the court order means judges must now inquire into a person’s financial situation as part of the overall bail review. While this has happened often before, she said, the court order makes it mandatory.

“This is an additional factor that a judge must take into consideration,” she said.

While Eyherabide said the judges “are doing this investigation now,” a sample of indictments held on Friday – 10 days after the court order – revealed that was not the case. In half a dozen felony indictments, when it came to setting bail, no one – judge or defense attorneys – raised the issue of the accused’s financial situation to satisfy the caution.

In almost all cases, the bail schedule was used as a guide, and in some cases, judges set the bail amount below the schedule.

Deputy District Attorney Marissa Bejarano said judges should weigh the risk to public safety as a primary consideration when setting bail, and now also need to consider how to pay. She said the order does not automatically make the bail schedule obsolete. Judges can always take the schedule as a starting point and either increase or decrease the deposit, she said.

Opponents of the cash bond like Hubbard disagree that public safety is the primary concern in setting the bond. The state constitution has two sections dealing with bail: one establishes a right to pre-trial bail, except in certain circumstances, and a second sets out the victim and public safety. main consideration. The High Court will likely have to resolve this conflict.

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