Detaining People Who Can't Afford Bail Is Unconstitutional, California High Court Rules

The California Supreme Court issued a major ruling Thursday determining that the state’s unilateral policy of detaining people simply because they cannot afford bail is unconstitutional. 

The unanimous decision means that judges in the state must consider a defendant’s ability to pay when they set bail. If they cannot pay, and the judge does not believe them to pose a threat to society if released, the judge may not keep them behind bars in pretrial detention. 

“Whether an accused person is detained pending trial often does not depend on a careful, individualized determination of the need to protect public safety, but merely as one judge observes the accused’s ability to post the sum provided in a county’s uniform bail schedule,” Justice Mariano-Florentino Cuéllar wrote in the court’s opinion.

“The common practice of conditioning freedom solely on whether an arrestee can afford bail is unconstitutional,” they concluded. 

The court took on the case after a San Francisco man, Kenneth Humphrey, challenged the $600,000 bail a judge assigned him in 2017 after he was accused of robbing a neighbor of $5 and a bottle of cologne. The robbery case has yet to be settled.

“I am pleased other people will have the same opportunities I had to change their lives and they will not have to wait in jail for years because they are too poor to pay bail,” he said in a statement Thursday through the San Francisco public defender’s office.

Public defender Mano Raju called the decision “historic” and applauded Humphrey for his courage to challenge the system

“Mr. Humphrey’s success while out of custody shows what can happen when we invest in people, not cages, and my office is committed to continuing to push for changes that will result in more fairness and equity for all Californians,” Raju said in a statement. 

Thursday’s ruling comes four months after Californians voted against a statewide proposition to completely eliminate cash bail. Most vocal criticism of the legislation came from progressive groups that worried the system that would replace cash bail — using risk-assessment tools and giving judges more discretion — might exacerbate racism and other inequities in terms of who’s held in pretrial detention.