California Supreme Court: Judges must consider ability to pay when setting bail

The California Supreme Court on Thursday unanimously ruled that judges must consider a suspect’s ability to pay when setting bail, essentially suggesting that non-dangerous defendants who cannot afford bail should be released under other conditions.

“The common practice of conditioning freedom solely on whether an arrestee can afford bail is unconstitutional,” Justice Mariano-Florentino Cuéllar wrote in the unanimous opinion.

The justice specifically noted other conditions under which defendants can be released, including electronic monitors, regular check-ins, community shelters and drug and alcohol treatment.

“Other conditions of release — such as electronic monitoring, regular check-ins with a pretrial case manager, community housing or shelter, and drug and alcohol treatment — can in many cases protect public and victim safety as well as assure the arrestee’s appearance at trial,” the justice wrote.

The justices determined that if holding a suspect on bail is necessary, the court must evaluate the defendant’s ability to pay, writing that arrestees can not be held “solely because [they] lacked the resources” to post bail.

“What we hold is that where a financial condition is nonetheless necessary, the court must consider the arrestee’s ability to pay the stated amount of bail — and may not effectively detain the arrestee ‘solely because’ the arrestee ‘lacked the resources’ to post bail,” the unanimous opinion reads.

The justice, however, wrote that in order to conclude that a suspect cannot be released at all, the court must “first find by clear and convincing evidence that no condition short of detention could suffice,” the opinion reads.

The decision upheld a ruling from a San Francisco-based state court of appeal panel which found that Kenneth Humphrey, who was jailed for more than eight months because he couldn’t pay a $350,000 bail for charges of stealing $5 and a bottle of cologne from a neighbor, could be released with an ankle monitor because he could not pay the money, the Los Angeles Times and The Associated Press reported.

The appeals court had the support of then-state Attorney General Xavier Becerra, who was recently confirmed as secretary of the U.S. Department of Health and Human Services, according to the AP. Becerra said judges should consider if suspects are dangerous or likely to run away when deciding to keep them in custody while awaiting trial, the AP wrote.