What the California Supreme Court’s New Bail Decision Means – CalMatters

from Nigel DuaraCalMatters

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The Supreme Court of California ruled Thursday that judges must consider someone’s financial situation when setting bail, a decision that gives the courts some flexibility to imprison poor defendants before trial.

The case turned on a $7 cheeseburger purchased with another person’s credit card. The person accused of theft spent six months in jail on bail he could not afford.

Although his case was decided long ago, the court decided to address the constitutional issues arising from his detention and inability to pay his way.

Two articles in the California Constitution were potentially in conflict: right of defendant be released on bail, except for certain violent or sex crimes, and a separate article created by the 2008 ballot measure instructing judges that “public safety and the safety of the victim will be the primary considerations” in determining the amount of bail. The question before the Supreme Court was whether they could be harmonised.

The court unanimously found that they could.

The ballot measure and subsequent law “already provide courts with considerable discretion to order the detention of dangerous defendants,” Chief Justice Patricia Guerrero wrote. “We can’t ignore that framework just because (prosecutors) would prefer more expansive powers to detain people charged with crimes beyond those listed in” the ballot measure.

The decision noted that voters are free to create a new bail system — while the consensus opinion essentially asks that the issue be resolved by the governor or the Legislature.

The court said its decision upheld a “reasonableness analysis” when judges set bail that takes into account a defendant’s “totality of circumstances.”

The case in question is related to six months imprisonment of Gerald Kowalczyk, who used credit cards he found to buy a $7 cheeseburger in January 2021. Kowalczyk had more than 60 convictions and a history of parole violations. A preliminary algorithm gave it the highest possible risk.

Prosecutors noted his history of defaulting on court orders and asked that he be held on high bail. A San Mateo Superior Court judge set his bail at $75,000, an amount Kowalczyk, homeless and unemployed, could not post.

The case is moving between the First Circuit Court of Appeals in San Francisco and the Supreme Court until Thursday’s ruling.

In a concurring opinion, Judge Joshua Groban said prosecutors urged the court to interpret the law in a way that allows judges to set “unattainable bail” for defendants not charged with violent or sex crimes.

“But as today’s opinion makes clear, this practice, however common and long-standing, is generally inconsistent with the constitutional right to pretrial release and the principles of equal protection and due process,” Groban wrote.

“Of the thousands of custody and bail decisions that are made each week in our trial courts, district attorneys’ hypotheticals concern a small and atypical subset: cases in which the defendant is not charged with an act of violence or sexual assault, or even charged with a threat of violence, but still poses such a serious and immediate threat to public safety that there are no pretrial release conditions that could adequately mitigate that threat.”

A much shorter concurrence by 2nd Circuit Court of Appeals Judge John Shepherd Wiley Jr. got right to the point: “Today’s decision calls for a legislative and executive response. I hope the invitation is accepted.”

Wiley has an interim appointment to the California Supreme Court following the retirement of Associate Justice Martin Jenkins.

Voters by referendum rejected an offer this would abolish the cash bail system in 2020.

It further complicates the matter 2021 California Supreme Court decision which forbids judges from determining the amount of the guarantee higher than what the defendant can pay, unless the defendant is a danger to the public or is unlikely to appear in court.

This decision did not immediately end cash bail for indigent defendants, UCLA Law School Review found in late 2022. In fact, the authors said, many judges are interpreting the ruling to mean they have even more power to hold people without bail.

This article was originally published on CalMatters and is republished under Creative Commons Attribution-NonCommercial-No Derivatives license.