The first thing a criminal defendant’s family asks is, “Can
you get our loved one out of jail?” At this stage, the defendant
is being held in jail on a bail in conformance with a bail schedule. That
family can save a LOT of money on bail if their lawyer immediately seeks
a lower bond (or release own recognizance).
Although bail reform in California is still on the horizon, there are excellent
arguments for a bail dramatically lower than the county bail schedule,
or release on own recognizance.
First, the use of a “bail schedule” by a judge is arbitrary
and capricious. Second, setting an unaffordable bail violates the Eighth
Amendment. Third, the only legal basis for setting a bail is risk of flight.
And remember: “In our society liberty is the norm, and detention
prior to trial or without trial is the carefully limited exception.”
United States v. Salerno (1987) 481 U.S. 739.
Every county’s judges create a bail schedule. They are for jail deputies,
who must set a bond on the fly without knowledge of the defendant’s
particular situation. Sometimes this is incorrectly referred to as “statutory
bail”; bails pre-set by statute would be illegal.
The bail schedule is authorized in Government Code sec. 72301 (bail accepted
by court clerk) and Penal Code sec. 1269b (bail accepted by custodial officer).
However, once the prisoner does appear before a magistrate, it is the magistrate’s
constitutional duty to fix bail in an appropriate amount based upon factors
relevant to that individual prisoner, and not upon any fixed schedule.
As the Supreme Court stated in Stack v. Boyle (1951) 342 U.S. 1, 5, the
factors relevant to a determination of the appropriate amount of bail
“are to be applied in each case to each defendant.” Bail set
solely by reference to a non-tailored schedule is therefore not set in
conformance with the requirements of the United States Constitution.
There is no case in California permitting the use of a bail schedule by
a magistrate in fixing the amount of bail for a defendant appearing before
such magistrate. No California case has yet directly addressed the constitutionality
of such a system. However, the use of a bail schedule in such a manner
has been found improper in other jurisdictions, including federally, and
in state situations by the United States Department of Justice, Amicus
Curiae Brief in Walker v. City of Calhoun (Georgia) (2016) 11th Circuit
case no. 16-10521-HH, filed August 18, 2016, as well as by the San Francisco
City Attorney and Sheriff.
If a Court relies upon the “bail schedule” in fixing the amount
of bail, and not upon the factors that are constitutionally relevant,
then the court acts arbitrarily and capriciously.
Bail Must be Affordable
Once release is deemed appropriate, “[b]ail set at a figure higher
than an amount reasonably calculated [to ensure the defendant’s
presence at trial] is ‘excessive’ under the Eighth Amendment.”
Stack v. Boyle (1951) 342 U.S. 1, 5 [emphasis added], cited app. in Salerno,
supra, at 752-755, see also Art. 1, Sec. 12, next to last para., People
v. Ormiston (2003) 105 Cal.App.4th 676, 688.
The Eighth Amendment is applicable to the states. “The Eighth Amendment
provides: ‘Excessive bail shall not be required….’
The provision is applicable to the States through the Fourteenth Amendment.”
Roper v. Simmons (2005) 543 U.S. 551, 560 [citing many cases]; see also
Schilb v. Kuebel (1971) 404 U.S. 357, 365, cited app. on that incorporation
point in McDonald v. Chicago (2010) 561 U.S. 742, fn. 12 [130 S.Ct. 3020,
3034-3035, fn. 12].
Therefore, counsel should be prepared to present facts specific to the
defendant’s ability to afford bail at bond hearing. Multi-state
killer Robert Durst skipped a $250,000 bail, which was obviously insufficient.
However, that same bail would be unconstitutional if set for a middle
class defendant unable to post the premium.
Risk of Flight is the ONLY Basis for Setting a Bail
Two California propositions effectuate bail rules. Both Proposition 4 and
Proposition 8 were on the June 1982 ballot. Because Proposition 4 got
more votes, it became the operative law in California as Art. I, sec.
28 of the California Constitution. Proposition 4 made risk of flight the
only criterion of the setting of bail, consistent with prior state law;
Proposition 8, which never took effect, included other factors, such as
“Because Proposition 4 received a greater number of votes, the bail
provisions of Proposition 8 never went into effect.” People v. Barrow
(1991) 233 Cal.App.3d 721, 723, cited app. People v. Cortez (1992) 6 Cal.App.4th
1202, 1211; In re York (1995) 9 Cal.4th 1133, 1140, fn. 4, People v. Standish
(2006) 38 Cal.4th 858, 874-875. (See also editor’s notes following,
respectively, Article I, section 12, and Article I, section 28, of the
California Constitution in the West’s Annotated Codes rendition.)
That is, the Article I, section 28, provisions regarding bail was and
is a nullity.
Therefore, only the criteria contained in Article I, section 12, of the
California Constitution (and only the ones not inconsistent with the Eighth
Amendment), is flight risk. (Pen. Code §§ 1270, 1275 to the
contrary notwithstanding, as violative of the Constitution.) There is
no “public safety” criterion recognized in section 12. That
is, the sole criterion remains that of likelihood of appearance. Van Etta
v. Scott (1980) 27 Cal.3d 424, 438, citing Underwood; In re Samano (1995)
31 Cal.App.4th 984, 992.
See, e.g., Ormiston, supra at 688 [emphasis added], citing many cases:
“The sole issue at a bail or OR hearing is whether the detainee
will appear for subsequent court proceedings if released, and the sole
purpose is to ensure the defendant’s attendance in court when it
Bond hearings are contested hearings before a neutral magistrate. Counsel
should be prepared to argue that use of a bail schedule would be arbitrary
and capricious, that the bail must be affordable to the particular defendant
before the court, and that flight risk is the only criterion for calculation of bail.