October 10, 2018

ABA urges California Supreme Court to affirm decision critical of cash bail schedule

CHICAGO, Oct. 10, 2018 — The American Bar Association filed this week an amicus brief with the California Supreme Court urging the court to keep in mind important constitutional rights as it considers the future of California’s money bail system in the wake of state lawmakers passing legislation known as SB 10.

Signed by Gov. Jerry Brown on Aug. 28, SB 10 replaces the previous money bail schedule with a system of risk assessments, which takes effect in October 2019. 

Earlier this year, a state appeals court in San Francisco invalidated the long-held practice of California judges following a bail schedule to determine how much a defendant must pay to be released. In August of 2017, the ABA House of Delegates, the association’s policy-making body, adopted a resolution that urged governments to bar such bail schedules “that consider only the nature of the charged offense” and not the defendant’s ability to pay because such schedules often violate the constitutional rights of the poor. Such a money bail system is also inconsistent with the ABA Criminal Justice Standards for Pretrial Release.

“The ABA Standards are built on the basic constitutional premise that individuals should not be incarcerated solely based on their inability to purchase their freedom,” the ABA brief said. “Faithful application of the standards — including individualized risk and financial assessments, the imposition of only the least restrictive release conditions and a general presumption in favor of pretrial release — should ensure that defendants’ constitutional rights are protected.”

Both the ABA 2017 resolution and the pretrial release standards are incorporated in the ABA filing. The brief in support of the habeas corpus petition of defendant Kenneth Humphrey can be found here.

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