In his recent opinion piece in J., Judge Quentin L. Kopp (Ret.) argues against changes to California’s money bail system, including existing statutes stipulating that “public safety” and the severity of the offense be used to set bail — not a person’s ability to pay. Unfortunately, Kopp’s arguments fly in the face of current thinking.
If the current system were equitable and constitutional, there would no discussion of change, nor would such high-level figures support it. Gov. Jerry Brown, Supreme Court Justice Tani Cantil-Sakauye, Attorney General Xavier Becerra and 12 trial judges from across the state all support reform of the money bail system.
Senate Bill 10, currently pending in the state Legislature, seeks to address the issue. Jewish concerns about equity are at the heart of this critical matter.
On Jan. 25, 2018, San Francisco’s First District Court of Appeal ruled that “a defendant may not be imprisoned solely due to poverty,” and that unaffordable bail could be used only to detain those who were a threat to public safety. (Bail has long been based on a chart, or “bail schedule,” that does not consider ability to pay.) The First Court judge also ordered a new hearing that considers ability to pay and nonmonetary alternatives to bail.
The San Francisco ruling referred to the case of Kenneth Humphrey, who had appealed paying $350,000 bail that would allow him to avoid jail while awaiting trial. Humphrey allegedly had threatened bodily injury on a neighbor and then stole $5 and a bottle of cologne. He had been jailed for 248 days before the appellate ruling because he could not afford the bail. His community ties, agreement to enter an addiction treatment center and law-abiding life for 14 years were not considered.
Humphrey’s lawyers argued that not considering ability to pay put judges in violation of the U.S. Constitution’s 14th Amendment providing equal protection and due process. In a public statement, San Francisco Public Defender Jeff Adachi said, “The court was clear that judges are acting unconstitutionally and unlawfully by following the current practice.”
Judge Kopp’s dismissive attitude toward bail critics lacks grounding in legal research about public safety and bail. In 2008, San Francisco Superior Court Judge Curtis E. Karnow published a legal study called “Setting Bail for Public Safety.” His research showed that judges decide the bail amount with little information about the defendant’s personal history or resources.
Judges have high caseloads and limited time. Without knowing enough about the defendant’s financial resources, it’s difficult to set meaningful bail. If bail is too low, its loss is not important to the individual, but if too high, bail effectively becomes preventive detention.
Setting fair bail is particularly difficult for judges when defendants are poor, which is typical in misdemeanor cases like prostitution or drug offenses. Without money to pay any bail, these defendants have nothing to lose. Hence, the threat of loss does not function as a deterrent to repeating the criminal act. Besides, defendants only lose the bail money if they don’t appear in court, but not if they commit a new offense. So high bail has a minimal effect on deterring future crime.
Judges also have little evidence-based information about how often a defendant returns to crime, nor the factors affecting that rate. Judges typically depend on the severity of the action when setting bail, but in fact, empirical studies by legal scholars over many years have shown no correlation between the seriousness of the crime and the likelihood of flight, or of future crime, by those released on bail. Other factors, such as the frequency of arrest in a three-year period, or whether the defendant lives alone or has prior failures to show up in court, are more predictive.
Even knowing these factors, the research showed that setting bail can be arbitrary. Judge Karnow concluded, “There is no reason to believe setting bail at any amount serves the interests of public safety.” He called for research on the type of crime committed with factors that actually correlate with whether a person returns to criminal activity, such as the defendant’s age and sex, the nature of the offense, community ties, employment, addiction, criminal record and prior failures to show up in court.
While Judge Kopp labels money bail reform supporters as “mavens” or “amateurs,” his insistence on maintaining the status quo in our bail system is refuted by current legal precedent and research. Having about 63 percent of California prisoners in county jails awaiting trials simply because they cannot pay bail before their trials, according to Human Rights Watch’s latest report, is not just. As Jews we are taught: “Justice, justice, shall you pursue.” We should support better practices in our courts. Contact your Assembly member to support SB10!