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.

Thomas Hawk / flickr

The procedure of charging and posting cash bail has prompted a historic lawsuit out of San Francisco.

Evidence has been mounting for years that the bail system places the poor in an untenable position when they are arrested. As the Economist noted, “around 1,800 San Franciscans every year are detained before their trials because they are poor.” But a new case with unusual details has resulted in a class action suit that strikes at the heart of the practice. “Crystal Patterson didn’t have the cash or assets to post $150,000 bail and get out of jail after her arrest on an assault charge in October,” as the Associated Press recounted. “So Patterson, 39, promised to pay a bail bonds company $15,000 plus interest to put up the $150,000 bail for her, allowing her to go home and care for her ailing grandmother.”

That’s where things took a turn for the absurd. “The day after her release, the district attorney decided not to pursue charges,” the AP observed. “But Patterson still owes the bail bonds company. Criminal justice reformers and lawyers at a nonprofit legal clinic in the District say that is unconstitutionally unfair.”

According to the lawsuit, filed by the nonprofit group Equal Justice Under Law, “the due-process and equal-protection guarantees” contained in the 14th Amendment “have long prohibited imprisoning a person because of the person’s inability to make a monetary payment.”

Bail on trial

“Yet that is just what San Francisco’s bail schedule does,” the Economist added. “Even the city’s former sheriff, Ross Mirkarimi, laments the injustice and inefficiency of its bail policy. Most inmates in its jails have been charged with minor crimes or misdemeanors like public urination or petty larceny and are at scant risk of ducking their trials and compounding their legal woes. Jailing these people before their trials costs the city. It would be cheaper and more humane, he suggests, to use pre-trial services like electronic monitoring to usher defendants back to court.”

The EJUL lawsuit was filed in October. “A judge will decide in next month whether to temporary suspend San Francisco’s bail system until the lawsuit is resolved,” according to the AP. The organization’s attorneys have suggested that the legal argument they have trained on San Francisco would have to apply across California as well if it is accepted in court. “Center lawyer Phil Telfeyan says if a judge strikes down San Francisco’s bail system, similar policies in the state’s 57 other counties will also have to be changed,” the wire reported.

Nationwide concern

As dismaying anecdotes have accumulated, cash bail has begun to encounter organized opposition outside California as well. “When Miguel Padilla landed in jail for driving with a suspended license, his fiancée scrambled to raise $1,000 in bail to get him out of New York City’s Rikers Island. They couldn’t come up with the cash,” as Take Part reported. “So the 35-year-old decided to plead guilty, rather than fight his case, to get back to his three kids as fast as possible. In the five days Padilla spent behind bars, he lost both of his low-wage jobs. After his release, he struggled to find another job — thanks to his new criminal record.”

Years of data has suggested Padilla’s problem is endemic. “In a 2011 report by the city’s Independent Budget Office, 79 percent of pretrial detainees were sent to Rikers because they couldn’t post bail right away,” wrote Maya Schenyar in a 2015 editorial at the New York Times. “Across the United States, most of the people incarcerated in local jails have not been convicted of a crime but are awaiting trial. And most of those are waiting in jail not because of any specific risk they have been deemed to pose, but because they can’t pay their bail.”