California Supreme Court’s thoughts on bail reform. Oh, and mine as well.

California Supreme Court’s thoughts on bail reform.  Oh, and mine as well. Banner Image

The California Supreme Court said on Thursday that judges must consider a suspect’s ability to pay when they set bail essentially requiring that defendants who are indigent be released pending trial, unless they are deemed too dangerous to be released.  Keep in mind that judges can require electronic monitoring, regular check-ins with authorities during the pendency of a case, or order stays at shelters and drug and alcohol treatment in lieu of the cash bail.

The justices, in a unanimous decision, said that “the common practice of conditioning freedom solely on whether an arrestee can afford bail is unconstitutional.”  This is a major win for those who champion arrestee rights, criminal justice reform, etc.  Back in November, voters were unwilling to remove California’s cash bail system and replace it with a “risk assessment” system that judges would use to determine whether an individual arrestee was a threat to the public and whether that person would return to court for their case.

This decision by the state supreme court does keep California’s cash bail system in-tact, but not for those who cannot afford it.  Prosecutors will now have to prove, by clear and convincing evidence, that a lower-income arrestee is a flight risk or danger to society, unless cash bail is put into place.  On every case.

You might ask yourself, what even is bail or why is it used?  Well, bail is money or property that is “put up” by an arrestee that can be forfeited if they fail to appear to court for their case.  Traditionally, judges have looked to seriousness of the crime, a person’s prior criminal history and any failures to appear at court when determining bail.  Many argued that this allowed for wealthy persons to post bail and remain “free” while they fight their case while poorer, in-custody persons would have to fight their case from inside jail (poor conditions) and this would unduly cause them to take plea deals they wouldn’t otherwise take.

So, what does this mean for you?  Well, if you have resources, own a home, have income or family and/or friends who might financially support you, means probably nothing.  This decision doesn’t look at those who come before a judge at arraignment who have means.  What this means is that if you are out of work, no family supporting you, a low-wage worker, etc., a judge cannot simply keep you in custody via bail if you cannot afford it and you are not deemed a flight risk or a danger to society.  Even then, you might be able to get released without bail so long as you have periodic check-ins with law enforcement, court, etc.

Personally, I think this is a great decision and something that was long overdue.  Professionally, it will likely contribute to less business for me since people who are being held in jail typically want to hire an attorney faster so that we can appear in front of a judge and attempt to get them released without bail, but there is a bigger picture here.  We’ve all seen the wave of criminal justice reform coming and even though I am a private attorney and make a living out of people being taken advantage of by the system, my true passion in life is the reform of this system I, and my clients, have to navigate through on a daily basis.  So yes, it might lead to less money for me, but it is a step in the right direction for everyone to be seen equally in the eyes of the law.

If you, or anyone you know, has questions about bail, pending charges, an arrest or what your legal rights are, contact Los Angeles criminal defense attorney Ross Erlich today or visit the rest of to read more.