Seven months after her office released sweeping recommendations for reform of California’s bail system, state Supreme Court Justice Tani Cantil-Sakauye may have a chance to force changes without going through the Legislature and Gov. Jerry Brown.

Last week, the state Supreme Court agreed to take up a January appellate court ruling that took dead aim at a bail system that some say turns county jails into “debtor prisons.” More than half of jail inmates are there not because of convictions but because they can’t raise bail, which usually requires providing a bail bonds office with cash or property worth 10 percent of the total bail sum. California has the highest cash bail rates of any state, according to Human Rights Watch.

“A defendant may not be imprisoned solely due to poverty,” Presiding Justice J. Anthony Kline said in a 3-0 decision of the 1st District Court of Appeal that ordered a new bail hearing for Kenneth Humphrey, a retired maintenance worker living in San Francisco who was accused of threatening a neighbor, stealing a bottle of cologne and $5, and demanding more money. Humphrey said he was seeking payment of a debt. But a judge followed a standard bail schedule that took note of Humphrey’s previous felony convictions and set his bail at $600,000, which was later reduced to $350,000.

San Francisco District Attorney George Gascón welcomed the Supreme Court’s decision to take up the case, which he had requested after state Attorney General Xavier Becerra chose not to appeal the appellate ruling. “We’re pleased,” he told the San Francisco Chronicle. “I’ve made it very clear that I’m not a proponent of money bail. But getting rid of money bail doesn’t entail that we will never have pretrial detention. There are still some people that are going to be either a flight risk or dangerous, and what we have now is a state of the law that is unclear, and the standard in terms of dangerousness may be way too high.”

Cantil-Sakauye urged bail changes in 2016 speech

While the appellate ruling was stayed pending the state high court’s ruling, criminal justice reformers were hopeful that Cantil-Sakauye’s history hints at the court’s eventual decision.

The chief justice conveyed her support for bail reform in her 2016 State of the Judiciary speech. A task force she convened issued a report in October that said the state’s system “unnecessarily compromises victim and public safety because it bases a person’s liberty on financial resources rather than the likelihood of future criminal behavior” and was “unsafe and unfair.” It called for pretrial assessments that would help judges gauge the risk posed by each defendant and for “pretrial programs [that] would also give judges more tools to supervise defendants, such as drug testing, home confinement, and text reminders for court dates.”

This approach was used with Humphrey, 64, after the appellate court ruling overturned his $350,000 bail. He was released from jail after agreeing to supervised around-the-clock detention at a substance abuse facility and to wearing an ankle monitor.

Despite lobbying from Cantil-Sakauye, Gov. Jerry Brown and progressive and civil rights groups, the Legislature has so far been mostly cool to two years of efforts led by Sen. Bob Hertzberg, D-Van Nuys, and Assemblyman Rob Bonta, D-Oakland, to scrap the state’s money bail system. Their legislative proposals mirror the recommendations of the chief justice’s task force. One version passed the state Senate last year on a party-line vote before stalling; another was rejected by the Assembly.

Last week could be remembered as a turning point for California criminal justice as state Attorney General Xavier Becerra

Becerra did so with his announcement that he would not challenge a state appellate court ruling that ordered a new bail hearing for a retired shipyard worker in San Francisco who had been held in jail for more than eight months, unable to raise $350,000 bail. Kenneth Humphrey was accused of threatening a neighbor and stealing from his apartment.

The appellate panel held it was unacceptable to set bail so high for a defendant who appeared to not be a public threat. Becerra agreed with the finding and going forward essentially encouraged public defenders to routinely challenge bail they found unjust by saying his office would no longer defend heavy bail or bail that was imposed by local judges without a consideration of flight and safety risks or bail alternatives.

The state’s harsh bail practices were the target of legislation meant to end the “money” bail system that Sen. Bob Hertzberg, D-Los Angeles, and Assemblyman Rob Bonta, D-Alameda, introduced in late 2016. Senate Bill 10 would have in many cases eliminated bail, based on assessments of the accused’s flight risk and danger to the public. It also would have directed judges to consider the ability of accused individuals to raise bail.

The Hertzberg-Bonta initiative was in response to complaints from civil rights groups that heavy bail destroyed lives by costing the accused their jobs or their ability to attend school and preventing them from becoming productive individuals. More than half of those in county jails in California are there because of an inability to make bail, not any convictions.

Governor, chief justice negotiating final reform plan

The measure made some progress last year until it was abruptly pulled on Aug. 25 with an announcement from Gov. Jerry Brown that he and state Chief Justice Tani Cantil-Sakauye would work with Hertzberg and Bonta to fine-tune their measure before bringing it back to the Legislature this year.

“I believe that inequities exist in California’s bail system and I look forward to working this fall on ways to reform the system in a cost-effective and fair manner, considering public safety as well as the rights of the accused,” the governor said in a statement.

Brown is looking to carve out a late-career legacy on criminal justice reform, playing a key role in the adoption in 2016 of Proposition 57, which makes it easier for those accused of nonviolent and some violent crimes to win parole. Crime experts have long pointed out that crime is largely a young man’s game and that nations with relatively few prisoners in their 40s or 50s are at least as safe as the United States.

But the strength of the case for bail reform so far is somewhat murkier in the United States. While some local governments report success – notably in New Orleans – a bold bail reform law that took effect on Jan. 1, 2017, in New Jersey at the behest of then-Gov. Chris Christie has proven controversial. It uses algorithmic tools to determine whether cash bail should be assessed.

While the new law is credited with reducing New Jersey’s jail population 19 percent in its first five months, one of the algorithm’s decisions didn’t work out. The tool recommended the release last April of a Bridgeton, New Jersey, man named Jules Black, 30, after he had been arrested on suspicion of being a felon in illegal possession of a firearm. Days later, Black allegedly killed Christian Rodgers, 26, a neighborhood adversary, after shooting at him 22 times.

Rodgers’ mother, June, is suing Christie, the inventor of the bail assessment tool and others, seeking wrongful death damages and an injunction preventing further use of the bail algorithm.