The California Policy Lab at UC-Berkeley researched the impacts of a recent state Supreme Court ruling that setting unaffordable bail amounts is unconstitutional.
By Matt Keyser
National Partnership for Pretrial Justice
With a single ruling, the California Supreme Court drastically changed the state’s pretrial justice system in March.
The state’s highest court issued a decision that said judges must consider a person’s ability to pay when deciding cash bail.
“The common practice of conditioning freedom solely on whether an arrestee can afford bail is unconstitutional,” Justice Mariano-Florentino Cuéllar wrote in a unanimous decision in In Re Humphrey.
It’s a drastic change for a system that relied heavily on bail schedules to give judges a guide on setting bail based on the type of offense. The problem with bail schedules, however, is they put the focus on the alleged offense than an individual’s specific conditions.
Johanna Lacoe with the California Policy Lab at the University of California, Berkeley, studied the effects of the ruling in San Francisco County. Lacoe, the research director for the lab, and her team found that pretrial detention fell, bail releases declined, releases with intensive supervision conditions doubled, and jail populations relatively remained the same.
Their research covers pre- and post-Humphrey periods. (The pre-Humphrey period spans from May 2016 to December 2017 and the post-Humphrey period extends from February 2018 to February 2019.)
We spoke with Lacoe about her research, the impact of the Humphrey decision in San Francisco County, and how it caused a “tidal shift” in the California pretrial system.
This interview has been edited for length and clarity.
NPPJ: In your study, you discuss a “tidal shift” in the pretrial justice system in California. What does that shift entail?
Johanna Lacoe: There are a bunch of different ways that pretrial case processing has changed in California—or was on the brink of changing. Senate Bill 10 passed and then was undone by referendum by the voters last November. At the time, we thought that pretrial reform was coming to California through SB10, which was going to get rid of cash bail and replace it with a system of pretrial risk assessment. But that didn’t go into place.
Interestingly what we’re left with in that interim is a lot of variation across the counties of California in what their pretrial systems look like. Instead of having one uniform statement saying, “It must look like this,” we have a bunch of different counties doing many different things.
We partner closely with the criminal justice agencies in San Francisco County for research projects. San Francisco has experienced a bunch of different policy changes relating to bail and the pretrial period. And since the Humphrey case, there have been even more changes in San Francisco. There’s been the Buffin decision [which held bail schedules as unconstitutional under state law], and then [District Attorney] Chesa Boudin stopped requesting cash bail as a policy when he took office.
So there have been a bunch of different changes in San Francisco that set the stage for what changes in the rest of the state might look like.
NPPJ: What was it about the Humphrey case that appealed to you?
JL: The case originated in San Francisco. We thought it was a good time to try to understand what happened in San Francisco during the period that the county was implementing and adhering to Humphrey, awaiting the Supreme Court’s ruling. San Francisco is different in many ways than other counties; it has different practices and programs in place already and is able to respond and adhere to Humphrey differently than other counties.
NPPJ: What changes is the Humphrey decision bringing to California’s pretrial system?
JL: Instead of judges using a bail schedule, which just looks at the type of offense and setting bail based on that, Humphrey says that judges have to take into account the individual’s ability to pay. If judges are setting an unaffordable bail amount, they’re de facto incarcerating someone. With Humphrey, they have to consider all the options—all the least restrictive conditions of release that can meet the state’s interest before you can detain someone based on their inability to afford bail.
What this means is a couple of things. The courts have to figure out whether someone can afford a certain bail, and that’s information the court doesn’t generally collect and might not generally consider. It’s certainly not something that’s recorded in administrative databases that we use to look at court outcomes and case processing. So that’s a big change. And there’s been a lot of discussion about how that should be done and who needs to collect that information and present it.
It also suggests in the language that there have to be other options, other conditions of release, or maybe a menu of conditions of release. In San Francisco, there are several ways that you can be released: on your own recognizance with no restrictions; with minimal supervision, where you get reminders and follow-ups; on case management, which is intense supervision akin to being on probation prior to determination of guilt, or electronic monitoring. There are a bunch of different options.
Part of the change is thinking about right-sizing the type of supervision to the individual so that they can successfully be in the community and not be in detention. And trying to figure how to balance—what the Humphrey decision called the state’s interest—making sure people appear for court and protecting public safety.
NPPJ: You note in your study that while Humphrey is a good step in the right direction, it does pose some problems.
JL: Right. Not all counties use a pretrial risk assessment right now, because there’s not a requirement to. That’s one key way that counties can try to figure out how to release someone under the appropriate amount of supervision and do it in a somewhat standardized way.
There’s another hurdle. San Francisco has a nonprofit agency called the Pretrial Diversion Project, which has provided pretrial supervision services since the 1970s. It’s well established and they’ve been working with agency partners for a long time to provide those services. Not every county has a resource like that—or even probation-based supervision or other supervision programs that are either in the government or another agency. So developing even a couple of options that will meet that criteria of releasing people on the least restrictive option will take resources and time to develop.
And the other concern is we don’t know how the actors within the criminal justice system are going to respond to Humphrey. That could differ by county. It could be that prosecutors bring different arguments about public safety in the courtroom to detain a person rather than release if they can’t set high bail. We don’t know how behavioral change, or how charging activity might change, in response to Humphrey. That’s something we’re going to have to wait and see.
NPPJ: I imagine one of the biggest hurdles is having the resources to implement these changes. It’s not like the state is throwing money at each county to do so.
JL: It’s always a cost-benefit analysis. If you can reduce the number of people held in jail, there’s potential cost savings at some point. It’s definitely going to require resources. I think taking the broader view of cost-effectiveness and preventing future involvement in the justice system, preventing future crime, improving outcomes for people who are in contact with the justice system for the first time ultimately could be worthwhile.
NPPJ: In your report, you note that while pretrial detention decreased, the overall jail population stayed the same. Why is that?
JL: The sample that we focused on in our study is not the full population of people going into and out of jails in San Francisco. Our sample was about of quarter of the entire population booked into jail. So the change in our sample wasn’t enough to dent the overall inflows and outflows of the jail.
NPPJ: At the same time while pretrial detention decreased you note that intense supervision more than doubled.
JL: Yes. And that’s not necessarily a good thing. What does that mean for people and their outcomes? It’s likely much better than being detained, but why are some people getting a higher level of supervision than they would have if they had just made bail and gotten out with no kind of supervision? What’s the effect for those people? We weren’t able to tease that out in this study.
Another issue raised in this study is the idea or challenge about accurately representing the ability to pay in court and how that information gets collected and transmitted to inform decision-making in the court. A lot of processes are happening very fast, and it’s hard to get that information and then get it to the judge.
In our study, we’re not able to see bail amounts. Often in criminal justice data systems, the bail amount gets overwritten—an initial bail amount will be set and it’ll get overwritten by something else. We don’t have a good way to view the progression of what happened. We only see whether someone was released on bail. We don’t see if bail was set that was unaffordable and they weren’t released.
So trying to evaluate the specific impact of the change in amount, even just to estimate how much bail amounts drop as a result of this, we can’t do that with the data that we currently have.
And we definitely can’t say what affordability means, what it looks like, and whether Humphrey achieved what it’s aiming to do. We can only look at the bigger picture. It’ll be interesting to see whether some counties adopt a more systematic way to measure ability to pay.
NPPJ: Is it fair to say that while the Humphrey decision is a good start, more needs to be done?
JL: I definitely think it’s a step in the right direction. It doesn’t provide counties with clear marching orders. There’s a lot left to be determined and there’s a lot that’s left quite vague. That’s where the legislature has to step up and fill the gaps.
There’s pending legislation, kind of a follow up to Senate Bill 10. This new legislation is Senate Bill 262, which would require bail set at $0 for basically all offenses except serious and violent felonies. It would also require the court to consider the person’s ability to pay.
NPPJ: What’s next for your and your team? Will you continue to research these changes to California’s pretrial system?
JL: We have a lot of questions that we’d like to ask about pretrial reform in California going forward. This being a piece of it, but other changes as they occur as well.
We’re interested in expanding the counties that we’re working with. The work in San Francisco is really facilitated by a long-standing partnership, and that takes awhile to develop and get all the data linked together. So we’re in a good position in San Francisco to be able to do it pretty quickly. And I’m hoping to get to a similar position with other counties so we can help them think through their response to Humphrey.
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