Cash Bail ‘Reforms’ Put Violent Criminals Back on Streets

There is nothing more frustrating to citizens than when elected leaders completely ignore their concerns and arrogantly set aside the democratic process. That is precisely what happened to California’s cash bail system, and this so-called “criminal justice reform” has the potential to be damaging to crime victims.

For centuries, cash bail has been used by courts to ensure the appearance of a criminal defendant at trial. It also assists in keeping dangerous criminals off the streets. The Bail Clause of the Eighth Amendment of the Constitution only restricted bail that was too excessive without regard to whether it was affordable. California had never published a case stating that cash bail was unconstitutional. Thus, cash bail had long been recognized as an appropriate tool to keep the public safe.

The premise is simple. Someone gets charged with a crime, and a dollar amount is typically set by the court to give that defendant the opportunity to be released from custody pending the resolution of their case. The more serious the crime, the higher the bail amount the defendant needs to pay to be released. If the defendant cannot afford the amount, either on his own or with the assistance of a bail bondsman, he stays in custody until his case is concluded.

For years, advocates for reform have argued that cash bail is unconstitutional because it unfairly punishes the poor, as the vast majority of crimes are committed by subjects who reside in poverty. Conversely, wealthier subjects can afford bail, even if charged with heinous crimes, and are almost always able to be released from custody. Opponents have long argued that cash bail violates the Fourteenth Amendment because it unfairly punishes the poor. However, many courts, including the United States Supreme Court, never supported this argument.

Over the last 20 years, cash bail opponents have gained traction, and several states considered reforming their bail statutes or eliminating them altogether. The main point of reform was to require courts to consider a defendant’s ability to pay bail before setting it. Hence, the poorer a defendant was, the more likely he would be released from custody because his bail would be significantly lower — regardless of the crime for which he was charged. In 2017, then-lieutenant governor Gavin Newsom called for the complete disintegration of California’s cash bail system, arguing that all criminal defendants should go free unless they were a danger to the community and a flight risk. In 2018, legislation that mirrored this belief was authored by assemblymembers Bob Hertzberg and Rob Bonta, who is currently California’s attorney general. Known as Senate Bill 10, this legislation was supported by then-governor Jerry Brown as well as California Supreme Court Chief Justice Tani Cantil-Sakauye. The fact the Chief Justice was an opponent will become highly relevant shortly.

No opponents of the cash bail system cared that keeping dangerous criminals off the street was a concern for citizens. Also, eliminating cash bail would decimate a multimillion-dollar industry overnight. Hundreds of bail bondsman and their employees would suddenly be out of work. Regardless of this, the legislation passed, Governor Brown signed it into law on August 28, 2018, and the cash bail system was done.

But the bail bonds industry fought back. On August 29, 2018, a voter referendum to overturn the bill was filed. Subsequently named Proposition 25 and placed on the November 2020 ballot, a “no” vote would repeal Senate Bill 10 and keep the cash bail system in place. California voters made their opinions regarding the elimination of the cash bail system resoundingly understood, repealing Senate Bill 10 with more than 56 percent of the vote. Californians had let their political leaders know exactly where they stood on this issue.

However, unbeknownst to voters, cash bail opponents had a Plan B. Enter Chief Justice Tani Cantil-Sakauye and the California Supreme Court.

In 2018, an appellate court heard the case of In re Humphrey, which argued that defendant Humphrey should get a new bail hearing because when his bail had originally been set, the court did not consider Humphrey’s ability to pay the bill, nor did the court consider alternatives to cash bail. It should be noted that Humphrey, 79 years old at the time of his offenses, which were all serious felonies, had suffered four previous strike convictions for robbery and attempted robbery. Prior to the appellate court hearing the case, then-attorney general Xavier Becerra suddenly and unexpectedly conceded the argument and agreed that Humphrey should get a new bail hearing. Given the concession by Becerra, the appellate court reversed the bail determination.

Neither side sought review of the appellate decision. However, in an unprecedented move, and at the urging of several parties, including the San Francisco district attorney who was no friend of crime victims, the California Supreme Court decided to take up the issue anyway and reviewed In re Humphrey. You can figure out what happened next. The court found cash bail unconstitutional because it did not consider the defendant’s ability to pay the bail. While the court did not eliminate cash bail in its entirety like Senate Bill 10 was going to do, it did make it far easier for defendants to be released without posting bail whatsoever, especially if they were unable to afford the bail amount.

Therefore, despite a large portion of California voters wanted to continue the cash bail system, their wishes were overruled by the actions of a few political elites who believed they knew better.

Earlier this year and after the Humphreys case was decided, a Thousand Oaks resident who was heavily hallucinating due to a three-day controlled substance bender armed himself with a loaded gun, went to a neighbor’s home, and shot his way inside. A mother and daughter, who were home alone, hid in an upstairs closet convinced they were going to die. Fortunately, no physical harm came to them. The defendant was arrested and brought before the court. Under the previous system, that subject would not have been let out of custody. After Humphreys, however, he was released without even posting bail. His victims must now live every day with the fearful reality that they will likely see him again in their neighborhood.

Since California began its criminal justice crusade about 10 years ago, crime rates have skyrocketed. Yet political leaders continue to devise new “reforms” that let more and more dangerous criminals back on the streets. The only way to stop this callous disregard for the will of voters is to vote in new leaders who will listen to constituents and enact laws to protect crime victims.

John Barrick has worked as a prosecutor in the Ventura County district attorney’s office for more than 16 years and has prosecuted some of the most violent crimes committed in the county. He currently serves in the major crimes-homicide unit and is also a 2022 candidate for district attorney.