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Paul Wellman (file)

Cash Bail in California Ruled Unconstitutional

Judges Must Consider a Defendant’s Ability to Pay


Detainees behind bars at Santa Barbara County Jail have a few options. They could, for example, call Mcguire Brothers Enterprises, Biker Bail Bonds, or Bail Hotline. In the future, though, they may not need to call any of them.

A California appeals court in January ruled the cash bail system unconstitutional because underprivileged defendants languish in jail before ever being convicted of a crime. The ruling forces Superior Court judges to consider a defendant’s ability to pay when setting bail amounts.

“It’s really huge,” said deputy public defender Deedrea Edgar. “Poor people are held in jail because they don’t have money. It is on its face unfair.” Prosecutors and defense attorneys alike called the ruling — known as the Humphrey decision — very significant. The San Francisco case in the 1st District Court of Appeal involved Kenneth Humphrey, a 63-year-old man accused of stealing cologne from his elderly neighbor after a confrontation. His bail was set at $350,000; he spent eight months in jail.

The purpose of cash bail is both to ensure defendants show up in court and to protect public safety. But defense attorneys complain that bail amounts have become so high that they function as de facto detention orders. Judges are “no longer going to be setting bail without analysis,” said Santa Barbara defense attorney Bill Makler. “If a person is such a threat, make a record of why.”

Bail amounts are set by judges and differ by county. A defendant pays 7-10 percent of the bond to a bail bondsman, who acts as the insurer. There is also collateral. If the person does not show up to court, he or she forfeits the bond.

A group of representatives from across the Santa Barbara criminal justice system met with Superior Court Judge Patricia Kelly recently to discuss how to handle the flood of cases that could overwhelm the courts. “Are we going to see 5-10 [bail-review cases] every week?” asked Mag Nicola, chief deputy district attorney. “It’s too soon to tell.”

An unknown number of the 929 inmates in County Jail cannot afford to bail out. Of those, 64 percent are awaiting trial, according to jail chief Vincent Wasilewski. A vast majority are represented by public defenders because they cannot afford private counsel, not to mention the hundreds or thousands of dollars it costs to post bail.

By Paul Wellman (file)

Judge George Eskin

“There are people in custody who cannot bail out,” said retired Superior Court judge George Eskin, a bail-reform advocate, adding, “We don’t know how many.” Judges should immediately follow the new ruling, he said. “Bail has transformed from an assurance of security to a multibillion-dollar business fraught with implications,” he said. He explained that new technologies are emerging to replace the bail system, including conditions of release, GPS tracking devices, and ankle monitors.

One bail bondsman says his profession — while imperfect — does not need to be changed. Jae Brattain — a bail bondsman who took over his father’s business 25 years ago — said he tries to work with clients who cannot afford to pay. “We are mainly dependent on people’s honesty,” he said. “We struggle to collect the money from people who are not taking care of business.”

By Paul Wellman

A new court ruling could impact traditional bail services, such as Goleta Fast Response Bail Bonds, owned by Dave Corlatan (pictured).

About a third of his clients show up in court but don’t pay him, he said. Once or twice a year, he has to arrive unannounced at his client’s house to collect the money, he said. He has struggled to keep up with corporate bail bond companies that employ their own bounty hunters and, therefore, can take bigger risks. But now the movement toward eliminating cash bail could put his businesses in greater jeopardy.

But Brattain is not worried. “There have been proposals in the past,” he said. “It doesn’t seem feasible at all in California.” He has reason to be concerned, however. State legislation has been introduced to overhaul the system. California Attorney General Xavier Becerra announced Tuesday he would not appeal the Humphrey verdict.

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