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.

Comments are closed.