March 29, 2021

About 56% of voters were in favor of keeping a cash bail system last November. However, due to recent ruling that does not fully eliminate cash bail, judges will have to assess each case individually to decide if an arrested individual should be released prior to their trial date. (Photo by trophygeek under CC BY 2.0.)

The California Supreme Court unanimously ruled against the current cash bail system Thursday — a decision that some feel could lead to numerous releases and a more just future for marginalized communities.

In November, about 56% of California voters opposed Proposition 25 and opted to maintain the cash bail system, allowing arrested individuals incapable of posting bail to be detained while awaiting trial. These bails would be determined by the relevant charges and an individual’s criminal history but would not consider an individual’s ability to pay.

However, as a result of the recent ruling, which does not fully eliminate cash bail, judges will have to assess each case individually to determine whether an arrested individual should be released prior to their trial date, according to Jonathan Simon, campus Lance Robbins Professor of Criminal Justice Law at the UC Berkeley School of Law. He added that judges will have to consider the arrested individual’s ability to pay their cash bail during the decision-making process.

“Today’s ruling is significant,” said Assemblymember Rob Bonta in a joint statement released Thursday. “The jail house door shouldn’t swing open or closed based on how much money you have in your pocket.”

Individuals who have not been convicted make up more than 70% of the United States jail population, according to the Brennan Center for Justice, a nonpartisan law and policy organization. With the ruling, many of these individuals could be released, Simon added.

In the process of determining whether an individual should be released, a variety of factors come into play, including potential risk to public safety and the likelihood the person arrested will return for their court date.

These factors, according to an email from campus sociology professor David Harding, can be subjective, especially as ideas surrounding “dangerousness or risk are highly racialized in US society.”

California Coalition for Women Prisoners coordinating committee member Jane Dorotik — who served nearly 20 years in prison after being falsely accused of murdering her husband — said society tends to believe the prison system promotes public safety, those who go to prison are wrongdoers and the system can elicit reflection.

“I am not saying people don’t use the opportunity while incarcerated to reflect on their lives and what got them there, but they do it by the seat of their pants,” Dorotik said, noting the abusive environment within prisons. “They do it not because of the system but because of their own fortitude.”

Describing the system as “demeaning and debilitating,” Dorotik added that the now-opposed cash bail system is unjust for the accused, including many women who find themselves in prison despite having survived domestic violence and rape.

Dorotik’s bail was initially set at $3 million despite having no criminal history. It was later reduced to $1 million, allowing her to pay for her release with financial assistance after 21 days in county jail.

Eventually, the previous bail was scrapped, and it was hiked back up to $3 million, leaving her with no other option but to remain behind bars.

“Having to pay for your freedom and help represent yourself … is a privilege for the rich,” Dorotik said. “And how fair is that?”

Research has also indicated that pretrial detention causes a series of long-term consequences for those arrested, including unemployment, eviction and losing custody over children, according to Harding in the email.

Additionally, Harding noted in the email that those who have been detained while awaiting trial are more likely to plead guilty to avoid jail time, giving them a criminal record that can hinder their ability to find housing and gain a college education, among other opportunities.

Although the ruling has been interpreted by many as a victory for marginalized communities, Simon warned that other means of oppression and inequality will likely reemerge.

“This new process is pushing judges toward releasing people, but it’s also giving them very significant discretion to decide what conditions are necessary,” Simon said. “This new regime of conditions is very likely to develop in ways that will tend toward (reproducing) the same forms of inequality.”

Simon also added that the system should avoid using forms of surveillance, including electronic monitors, on those at home awaiting trial.

Meanwhile, Dorotik called on the court system to stop criminalizing lesser crimes, release more elderly inmates and funnel the large sums of money amassed by the criminal justice system back into the community.

“(The system) does not help anybody,” Dorotik said. “And yet it’s such an accepted thing.”

Contact Mallika Seshadri at mseshadri@dailycal.org and follow her on Twitter at @SeshadriMallika.