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In a landmark ruling, the California Supreme Court unanimously agreed that judges must consider a suspects’ ability to pay when bail is set, meaning they are barred from keeping prisoners behind bars if they can not afford bail prior to the start of their trial.

“The common practice of conditioning freedom solely on whether an arrestee can afford bail is unconstitutional,” the justices said in their decision.

However, judges will also need to weigh the risk the defendant poses to himself or others in determining whether they should be released. If a bail has to be determined, judges will need to determine the seriousness of the offense along with any prior records to determine a reasonable bail. Prior to, judges only considered the crime and any priors, which left hundreds of thousands of persons in jail waiting to post bail

Judges may still conclude that money bail is reasonable, but they must consider the defendant’s ability to pay, a long with the seriousness of the charged offenses and the person’s criminal record, and set bail in an amount the person can afford, Cuellar wrote.

For Black communities in California, the ruling could fundamentally change an important aspect of the criminal justice system and may very well save lives.

Nationally, the tragic story of Kalief Browder shone a necessary light on the cash bail system, where Black people are routinely left to languish in jail because they are unable to post bail. The practice routinely allows for wealthier individuals to be released, while lower-income persons are subjugated to remain imprisoned. Advocates who want to end cash bail also feel that the practice encourages individuals who are innocent, to plead guilty for the promise of release.

Last November, California residents were presented with an opportunity to end cash bail at the ballot box, but instead opted against the measure. The ruling upholds a lower court decision that allowed a San Francisco man to be released under electronic monitoring supervision.

Former California Attorney General Xavier Becerra supported the decision arguing that judges should contemplate on whether a suspect is dangerous or likely to flee as part of the decision to keep them in jail while awaiting trial.

Becerra was appointed to Biden’s Cabinet earlier this year, prompting California governor Gavin Newsom to appoint Rob Bonta, to his position. Bonta is a well-known supporter of ending cash bail.

“The jailhouse door should not swing open and closed based on how much money someone has,” Bonta said in January, according to CBS Sacramento. “There is no disputing the present system wrongly treats people who are rich and guilty better than those who are poor and innocent.”

In total the Supreme Court’s decision means that the ruling will become law in the state of California.


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