California Bail Reform

The Future of California Bail Reform

If you or a loved one has ever faced pretrial detention with no chance of posting bail because you couldn’t afford it, you know that the system is flawed. There is a growing effort nationwide to ensure that the judicial system is fair for everyone who may be held in jail while awaiting trial. California is leading that effort, and there have been significant recent changes to the bail system in California.

California’s Money Bail Reform History

For the last forty years, California has been trying to get rid of the money-based bail system. The first proposal was brought up by Governor Edmund G. Brown Jr. back in 1979. In his State of the State Address, he said that the bail system was a “tax on poor people in California” and that “thousands and thousands of people languish in the jails of this state even though they have been convicted of no crime.” However, no changes to the law were made.  

Fast-forward to 2017, and the issue of bail reform was brought to the State’s attention again. This time, it gained some traction. Kenneth Humphrey, a 63-year old man from San Francisco, robbed his 79-year-old neighbor of $7 and a bottle of cologne. He was placed in jail to await trial with a bail set at $600,000. After a hearing, his bail was dropped to $350,000, but he still couldn’t afford the 10% down he would need to pay a bondsman in order to be released.  

Humphrey’s story spread and it created a groundswell of support for bail reform.  After spending a year in jail, his appeal regarding the excessive bail in his case was heard. California’s 1st District Court of Appeal decided that setting a bail amount that a person could not afford was the same as denying that person bail.  A judge can only deny a person bail if they present a substantial safety risk to themselves or the public, or cannot be relied on to make their court appearance (also commonly referred to as being a “flight risk”).  The court decided that Kenneth Humphrey did not meet the criteria to be held without bail. Humphrey was released under the stipulation that he wear an ankle monitor and attend a drug and alcohol treatment program. His case then went to the California Supreme Court to make the final decision on the Constitutionality of cash bail.

Pretrial Detention Reform Workgroup

In her 2017 State of the Judiciary address to the California Legislature, Chief Justice Tani Cantil-Sakauye expressed concerns about people being kept in jail before their trial simply because they could not afford to make bail.  She stated:

“This is an equal access to justice issue here in California and nationally. All three branches of our government have expressed an interest in working on a solution to this pressing issue, and to support that goal I am establishing a work group to provide recommendations on how courts may better identify ways to make release decisions that will treat people fairly, protect the public, and ensure court appearances.”

Chief Justice Tani G. Cantil-Sakauye

The Chief Justice established the Pretrial Detention Reform Workgroup. The group was created for the sole purpose of studying the current pretrial detention system. They determined that the current system interfered with a person’s constitutionally protected right to liberty because it is based on a person’s ability to pay a high price rather than their criminal history and likelihood to commit crimes while awaiting trial. 

California Money Bail Reform Act

The California Money Bail Reform Act of 2017 was written based on the need to update the pretrial bail system. In 2018, it became Senate Bill 10 which was signed into law by Governor Jerry Brown.  In place of the cash bond, Senate Bill 10 (SB-10) allowed California to go from a money-based system to a risk-based release system to determine pretrial incarceration.

SB-10 established a pretrial assessment to gather information about the defendant to aid the judge in his or her decision of whether to keep someone in jail or to release them before their trial can be heard. SB-10 also requires the release of people arrested for a misdemeanor within twelve hours. 

There are ten primary exceptions to the rule when the misdemeanor charges are relating to:

  • Sexual offenses
  • Domestic violence or stalking
  • DUI charges (third DUI offense in ten years, DUI involving injuries, or DUI with a BAC of .20% or above) 
  • Restraining order violations within the past five years
  • 3 or more warrants for “failure to appear” within the last year
  • Pending trial or sentencing for existing misdemeanor or felony
  • On any type of post-conviction parole or probation
  • Intimidated, dissuaded, or threatened witness or victim
  • Violated condition of past pretrial release in the last five years
  • Serious/violent felony prior in the last five years

Those with a felony charge or who violate their pretrial release conditions may have their release revoked. With felony charges, the defendant may continue to be detained if their case:

  • Was a serious or violent offense
  • Involved physical violence or a threat of violence or increased likelihood of greater bodily injury
  • Involved being armed with or the use of a deadly weapon
  • Involved the personal infliction of greater bodily harm

If none of these exceptions exist, the defendant may be released on their own recognizance or they may be released with some additional restrictions. These restrictions are aimed at ensuring that the accused individual makes their court appearance.  Some of these restrictions include:

  • Electronic monitoring
  • Regular check-ins with a pretrial case manager
  • Community housing or shelter
  • Drug and alcohol treatment

However, this law never went into effect. SB 10 was challenged by a veto referendum in the California State Legislature.  This put it up for a public vote in 2020 as Proposition 25.  Californians voted no on Prop 25, which repealed SB 10 before it was ever enacted.  

In re HUMPHREY on Habeas Corpus

On March 25th, 202,1 the California Supreme Court heard Humphrey’s case and unanimously decided to eliminate cash bail for defendants who couldn’t afford it. In re Kenneth Humphrey, the Court held that it was unconstitutional to require defendants to remain in jail because they cannot afford bail.  

Ultimately, this decision will not end the cash bail system in California, but it will allow defendants who cannot afford bail to file “Humphrey motions” to lower their bail amount and request “Humphrey hearings” to ask judges to consider how much they can pay, or if they could be released on other less restrictive conditions (e.g., home confinement, electronic monitoring, etc.). People who can afford it, may still be required to post bail. 

The Future of California Cash Bail

Although this year has seen significant progress for Bail Reform in California, for many people, posting cash or real property to be released from pretrial detention is still the law of the land.  There are many serious issues with the current state of pretrial detention. A person who has not yet been convicted of a crime (because, of course, all individuals in the United States have a presumption of innocence until the government can prove their guilt beyond a reasonable doubt) faces severe consequences. 

In addition to the loss of liberty–however temporary it may be–many people face the very real prospect of losing their jobs, their children, and important relationships.  Prisons and jails also become increasingly overcrowded which can potentially compromise the safety of both inmates and prison guards alike.  Perhaps worst of all, not being able to post bail can also lead to innocent people taking plea deals.  It is not uncommon for some people to plead guilty and accept a lesser sentence that gets them out of jail quicker than waiting for a trial, even though they’ve done nothing wrong.

If you or a loved one is facing detention while awaiting trial, it is in your best interest to hire a criminal defense attorney who can help you get out of jail in order to prepare for trial at home, with your family surrounding you.  It is invariably easier to assist in your own defense from the outside, with your defense team, than it is while in pre-trial custody. Contact David Silldorf Law today; we will do whatever it takes to get you through this tough time.



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