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California high court rules judges must consider ability to pay bail

The California Supreme Court ruled on Thursday in favor of upholding a 2018 ruling by the state appeals court in San Francisco that requires judges to consider a criminal defendant’s financial situation and non-monetary alternatives when setting bail.

The case was brought on by Kenneth Humphrey, a San Francisco man accused of taking a $5 bottle of cologne from his neighbor’s home in 2017. His bail was initially set at $600,000 and he languished in jail for nearly a year as he awaited trial for burglary, robbery, elder abuse and theft charges.

In 2018, Humphrey, represented by late Public Defender Jeff Adachi, appealed his detention, with the appeals court ultimately agreeing he was entitled to a new bail hearing with the judge considering his ability to afford bail.

The appeals court decision also called for the California Constitution to require all state court judges to examine the ability to pay when setting bail unless there is clear and convincing evidence that the person poses a risk to public safety.

San Francisco Public Defender Mano Raju said the state Supreme Court ruling is significant because it will eliminate cash bail, which harms low-income communities and communities of color. The ruling will serve as a clarification for California judges moving forward in criminal cases in the pretrial phase, but public defenders must continue to push for judges to recognize the ruling, he said.

He said:

“It is incumbent on public defenders to bring those motions for people who are in custody. … This is something we’re going to have to keep fighting for.”

Humphrey’s attorney Alec Karakatsanis from the nonprofit Civil Rights Corps said:

“I can’t say whether judges will follow it widespread.”

Karakatsanis said:

“We’re very optimistic that the clarity of the court decision’s today will put to bed any notion that pretrial detention isn’t of the utmost seriousness.”

The Chief Probation Officers of California, the state department tasked with implementing probation programs, said in a statement:

“After today’s ruling, Probation departments throughout the state will continue to work to create programs that eliminate the role of wealth or financial status in pretrial release.”

The department said:

“The research is clear, the negatives of cash bail fall disproportionately on Black and Brown communities without improving safety. Wealth should play no role in the justice system and we will continue to fight for a pretrial system that focuses on safety, fairness, and effectiveness for system-involved individuals and our communities.”

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