In March, California’s state Supreme Court ruled to end cash bail if a defendant can't afford to pay, writing that “conditioning freedom solely on whether an arrestee can afford bail is unconstitutional." In a unanimous decision, the court ordered judges to favor pretrial release and consider a person’s ability to pay before setting bail.
Writing for the court, Justice Mariano-Florentino Cuéllar noted that “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 ruling marked a major victory for criminal justice advocates and a substantial setback for California’s bail industry. In the past, judges in California have based bail decisions on a set schedule, the defendant’s criminal record, and the severity of the charged offenses without considering if the defendant could afford to pay bail.
The state Supreme Court decision means that presumptively innocent people can’t be jailed while awaiting trial just because they lack the funds to pay bail. Trial courts must now consider an individual's ability to pay and can’t set bail at an amount that a person can't afford unless there are no other less-restrictive alternative conditions of release that reasonably assure the person's appearance in court or the safety of the community.
Although bail schedules will remain, individuals who have been arrested can continue to post the required amounts but are entitled to a bail hearing within 48 hours after the arrest. At the bail hearing, you can argue to a judge why you cannot afford the set bail amount.
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