SAN JOSE — As the state’s top law-enforcement official announced he would not challenge a landmark bail reform ruling, civil rights advocates across the state rallied Tuesday to turbocharge a judicial and legislative movement to end the practice of jailing suspects solely because they can’t afford to pay bail.
“Seventy percent of the people in that building have not been convicted,” Silicon Valley De-Bug director Raj Jayadev said, while standing outside the Santa Clara County Hall of Justice and pointing to the adjacent Main Jail. “Their only … crime is they didn’t have enough money to buy their liberty and freedom.”
In addition to Santa Clara County, similar rallies were staged in Contra Costa, San Mateo, San Francisco, San Joaquin, Merced, Los Angeles, Orange, Riverside and San Diego counties.
“The days of locking people up because they’re poor are over,” Jayadev said.
The rallies came a month after a landmark decision by the First District Court of Appeal involving 64-year-old Kenneth Humphrey, who was charged with stealing a bottle of cologne and $5 from an elderly neighbor at a San Francisco residential hotel in May. Humphrey’s bail was initially set at $600,000, and later reduced to $350,000, but still well beyond his financial means.
On Jan. 25, the court agreed with Humphrey’s counsel — the San Francisco Public Defender’s Office and nonprofit Civil Rights Corps — and ordered judges in the state to stop relying on the conventional bail schedule for criminal offenses, especially in cases where a defendant does not pose a substantial safety risk by being freed. The ruling also compels judges to consider bail alternatives like electronic monitoring with ankle bracelets.
In its decision, the court stated that Humphrey “is entitled to a new bail hearing at which the court inquires into and determines his ability to pay, considers nonmonetary alternatives to money bail, and, if it determines petitioner is unable to afford the amount of bail the court finds necessary, follows the procedures and makes the findings necessary for a valid order of detention.”
On Tuesday, state Attorney General Xavier Becerra announced he will not appeal the Humphrey ruling, which would have had to be done by Saturday, 30 days after it was issued.
“Decisions regarding who should remain in jail while awaiting trial should be based on their danger to the public, not dollars in their pocket,” Becerra said in a statement. “Bail determinations must keep Californians safe and ensure that a defendant shows up for trial. Bail determinations that do not consider whether a person awaiting trial can afford bail, and whether there are alternatives to incarceration that still preserve public safety, do not promote justice.”
The California Bail Agents Association has opposed changes to the current system, arguing that bail-bonds firms provide vital criminal-justice accountability at no cost to taxpayers. The group has also alluded to a recent uptick in California’s violent crime rate, which included a 14.3 percent increase in San Jose between 2015 and 2016.
“I don’t think anybody denies some tweaking needs to happen to the bail schedule,” said Maggie Kreins, the association’s vice president. “The bail industry is willing to work hand-in-hand with legislators to find a solution. But doing away with the system and throwing out the baby with the bathwater is not it.”
Kreins also argues that crime victims have been forgotten amid the movement to do away with cash bail.
“Allowing individuals out with no accountability, what does it do for the victims?” she said. “It victimizes every citizen of the state.”
But reform advocates argue that bail has become an unfair burden on the poor, allowing moneyed defendants to stay free while those who can’t afford bond languish behind bars. At minimum, they want bail hearings rather than the courts reflexively deferring to a bail schedule.
The district court recognized the additional burden placed on pretrial services departments in the state, but stated that the extra work was vital “to correct a deformity in our criminal justice system that close observers have long considered a blight on the system.”
Kentucky, Oregon, Wisconsin and Illinois have banned the bail-bondsman system and instead allow defendants to deposit 10 percent of their bail amounts directly with the court, and to get the money back if they make their court appearances. New Jersey and Washington, D.C. have similarly moved away from a cash-money bail system.
The appellate court recognized that legislative help on the issue is on the way in the form of state Senate Bill 10 — authored in part by Bay Area Assembly members Rob Bonta, David Chiu, and sponsored by Bay Area state Senators Jim Beall, Nancy Skinner and Scott Wiener. The prospective bill, which if passed would go into effect in 2020, also enjoys backing from Gov. Jerry Brown and California Supreme Court Chief Justice Tani G. Cantil-Sakauye.
In Santa Clara County, the Board of Supervisors moved forward last fall with a plan to create a nonprofit fund to post bonds for low-risk defendants who otherwise couldn’t afford it. Alameda County has “Mama’s Bail Out Day” where social-justice groups raise hundreds of thousands of dollars to post bail for black mothers to reunite them with their families in time for Mother’s Day.
The Santa Clara County initiative was part of a wide-ranging bail-reform package that also includes establishing a program to help ensure a defendant’s appearance at all court hearings, including by providing bus passes and other means to get to court, and giving county corrections officials the latitude to free low- to moderate-risk inmates and equip them with electronic ankle bracelets to monitor their whereabouts.
The county also plans to install a credit/debit machine for inmates who want to charge their bail instead of paying nonrefundable fees to a bondsman.
Audrey Parker’s son, Jason Fitch, has been in Santa Clara County jail for nearly three years, on multiple gang-related felony charges. She wants the court to at least hear about the effect his pretrial incarceration has had on his family, which includes three children.
“They need him home,” Parker said. “This Humphrey decision, it’s not just for my son. It’s for many sons, and for many daughters.”
She added: “We have a right to a bail hearing. Give us bail we can afford, an ankle monitor, whatever it takes.”
Reform advocates pledged to track and monitor bail decisions moving forward to chart how much judges adhere to the Humphrey ruling. Avi Singh, a deputy public defender, says he and his colleagues are ready to provide similar scrutiny.
“It’s not acceptable that someone can be held because they can’t afford to get out,” Singh said.
The Mercury News