The California Supreme Court recently issued a unanimous ruling that it is unconstitutional to require arrestees to pay bail to secure their release if they cannot afford it. Depending on how courts interpret the ruling, the use of bail could be substantially curtailed with tens of thousands of Californians affected.
To impose bail, judges will need “clear and convincing” evidence that the arrestee is a flight or public safety risk—and that this risk cannot be addressed through other release conditions, such as electronic monitoring, check-ins with a pretrial officer, or enrollment in drug and alcohol treatment programs. In addition, bail must be set at an amount the arrestee can reasonably afford.
The decision comes after 56% of voters rejected Proposition 25 at the polls last November. This measure would have upheld a state law—Senate Bill 10—passed in 2018 to eliminate money bail and replace it with a pretrial release system based on risk assessments.
California lacks comprehensive data on pretrial release, detention, and bail, so we can only loosely estimate how many people the ruling would affect. Prior PPIC research based on a representative group of counties found that 42% of arrestees are released before their charges resolve. Of those released, 30% pay bail. Therefore, of the nearly 700,000 adults arrested in California in 2019, we estimate roughly 88,000 paid bail, with some families taking on long-term debt to do so. Under the new ruling, these people may not have to pay bail or would pay a smaller amount.
Of the 58% of arrestees detained while their charges resolve, some are not offered bail because they pose unacceptable flight or public safety risks. However, many are detained because they cannot afford bail. The best available information from Fresno, San Francisco, and San Mateo Counties suggests that between 15% and 59% of unsentenced jail inmates—currently between 7,000 and 28,000 people statewide—remain incarcerated because they cannot afford California’s high bail amounts, which disproportionately affect African Americans and Latinos. Under the new ruling, these people may not have been detained pretrial, and defense lawyers may file motions to reconsider bail amounts set in these cases.
Much remains uncertain. What constitutes “clear and convincing” evidence? How should judges assess arrestees’ ability to pay? Under the state constitution, bail can be denied to those accused of certain crimes, but do other arrestees have a right to bail? These questions will take time to answer as cases make their way through the courts.
Risk assessments could potentially help judges make risk determinations. These tools rely on arrestees’ criminal history, demographic, and/or socioeconomic information to predict whether they are likely to be arrested during the pretrial period or to miss their court date. As of 2019, 49 counties already used risk assessments, though counties have implemented these tools in different ways.
Risk assessments also bring challenges. Critics argue that they can perpetuate preexisting inequities in the criminal justice system for African Americans, Latinos, and individuals experiencing homelessness, unemployment, and poverty. But proponents maintain that these tools offer opportunities for monitoring and evaluating accuracy—which could ultimately help mitigate inequities.
Bail reform has been discussed in California for years, and in 2020 widespread protests against police brutality and racial injustice intensified calls for criminal justice reform. The ultimate impact of this ruling will depend on judicial decisions and the outcomes of the eventual lawsuits that are likely to challenge them. Amid this shifting landscape, PPIC will continue to monitor California’s criminal justice reforms and their impact on equity and public safety.