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Thomas D. Elias: Cash bail decision due any day now

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Within days, or a couple of weeks at the most, Californians will know whether their state Supreme Court will respect their views on a key aspect of criminal justice, or whether their ideas on what is right and just will be ignored.

Only a few months ago, voters opted by almost a 57-43 percent margin to reject Proposition 25 and along with it a law passed in 2019 that would have ended cash bail virtually everywhere in this state.

Instead, judges would have been forced to grant pretrial release for criminal defendants regardless of how serious their offense so long as even one judge deemed them unlikely to flee or commit more violent acts.

Bail bondsmen and crime victims alike breathed a sigh of relief when that so-called reform was tossed. But now comes the state’s highest court, seemingly ready to disregard the voters’ will completely.

If the justices opt to get rid of cash bail in almost all cases, they’ll be following the example of Gov. Gavin Newsom, who used pandemic-enabled emergency power to suspend most cash bail last spring ostensibly to cut down crowding in county jails and help prevent more spread of disease.

The case the justices are using as justification for their likely ruling against the established bail system involves a San Francisco man who spent a year in jail on a robbery charge, unable to make $350,000 bail. When they took up the case about two months ago, the justices appeared to believe the accused was being discriminated against because he could not come up with one-tenth of his nominal bail, the amount most bondsmen require before putting up the balance of the bail as a kind of loan.

What had the 66-year-old suspect done? He allegedly broke into the apartment of a 79-year-old man in 2017, threatening to put a pillowcase over the victim’s head while stealing $5 and some scented water.

The theft was trivial, but the alleged break-in, the threat and the alarm it caused should not happen to anyone. His lawyer argued it was unjust to keep the accused intruder in jail awaiting trial just because he was broke.

Most legal officials involved in the case appear to agree. An appeals court ruled in August that it’s unjust to keep a defendant in custody when the bail set is far beyond his or her capacity to pay it.

The Supreme Court followed by telling all California judges to set bail only in amounts a defendant can afford to pay, at least until the San Francisco case is decided – which will be soon.

Justice Mariano-Florentino Cuellar, in a later hearing, cited a Nevada Supreme Court ruling holding no judge can set bail higher than a defendant can afford unless that is the only way to assure the suspect will show up for trial. California now has no such limits, but Cuellar argued that California’s state constitution can be interpreted in the same way as Nevada’s.

Other justices backed “taking each case individually, trying to figure out the dangerousness and how much bail must be set to amount to detention,” with a defendant’s finances part of that calculation.

There is a naïve quality to all this. For one thing, it assumes police or other court personnel can investigate the finances of thousands of accused criminals. One deputy attorney general, with backing from the sitting state Attorney General Xavier Becerra, argued that most cash bail is unfair because it “treats equally dangerous defendants differently based on their wealth.”

All this, of course, runs counter to both the voters’ recently expressed will, besides essentially ignoring the 2008 Proposition 6, which denied any bail to undocumented immigrants accused of felonies, while allowing judges to set bail according to the seriousness of the crime, the defendant’s prior record and the risk to the victim.

There is currently no law in California making a suspect’s financial condition part of any bail calculation.

Which may not make any difference to the state’s top court. It seems to be heading straight into defiance of the voters’ will and does not seem to care about that.

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Thomas D. Elias writes the syndicated California Focus column. He is author of the book, “The Burzynski Breakthrough: The Most Promising Cancer Treatment and the Government’s Campaign to Squelch It.”

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