Judges To Consider Defendant’s Ability to Pay When Setting Bail

A California Supreme Court Ruling Requires Judges to Weigh Whether Defendant Can Post Bail

A California Supreme Court decision issued on March 25, 2021, requires judges to consider the defendant’s ability to pay when setting bail. A trial court must determine whether a defendant has the financial resources and whether less restrictive alternatives are available.

Less restrictive alternatives that can be considered include “electronic monitoring, regular check-ins with a pre-trial case manager, community housing or shelter, and drug and alcohol treatment”

The court stated that pretrial detention should be reserved for:

  1. Those who cannot be relied upon to make court appearances, or
  2. Those who pose a risk to public or victim safety.

Contrary to what the headlines say this does not mean that bail has been eliminated in the state. Bail may still be set as a condition of release. The recent decision only requires that judges take a person’s ability to pay into consideration when setting bail and cannot make a person’s inability to post bail the only reason that they remain detained prior to trial.

Last November, California voters rejected Proposition 25 which would have replaced the state’s bail system with a pretrial risk assessment program. The proposition was added to the November 2020 ballot after opponents to Senate Bill 10 gathered enough signatures for a referendum. The proposition was ultimately defeated as a majority of voters voted to repeal the law.

States continue to consider criminal justice reform. Courts are taking note of how to increase a person’s access to justice by making legal services more accessible and more affordable. It is clear that reform needs to happen but is unclear that eliminating bail is the answer.


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