Thomas Elias: Why ‘no cash bail’ will pass legal muster
“Excessive bail shall not be required, nor excessive fines imposed, nor cruel and unusual punishments inflicted.” — 8th Amendment, United States Constitution (part of the Bill of Rights)
Less than two hours after Gov. Jerry Brown signed California’s landmark new “no cash bail” law, the Republican candidate to become the state’s top lawyer pronounced it illegal, unconstitutional.
This came even before the billion-dollar bail bond industry – likely to become extinct under the new law – began a campaign to qualify a 2020 referendum to cancel the measure.
Here’s what the GOP’s attorney general candidate Steven Bailey quickly said: “As recently upheld by the 11th Circuit (federal) Court of Appeals, the right to bail is a constitutional right and replacing it with problematic ‘risk assessment’ instruments denounced by over 115 civil rights groups (would) threaten the fundamental principles of freedom and equal justice under the law.”
Bailey, a retired El Dorado County Superior Court judge, followed one line of attack opponents of “no cash bail” will use against the new system, due to take effect one year from this week unless the referendum qualifies for the ballot and causes at least a temporary suspension.
Other arguments against the new law will surely come from bail bondsmen, who have thrived for centuries under the current system, giving rise to countless bounty hunters like the legendary Duane (Dog) Chapman, subject of a long-running reality TV show.
Under the current system, criminal defendants lacking the full amount of their bail can often pay a bail bondsman 10 percent of the amount in cash, with the bondsman providing the rest. Bounty hunters enter when defendants jump bail and the 90 percent paid by bail bondsmen gets forfeited.
Also, many defendants put up homes and other property to secure their bail, while others borrow from friends and relatives.
If opponents of eliminating cash bail repeat Bailey’s claim that it is a constitutional right, they will almost certainly lose in every court. For the Eighth Amendment says nothing about a right to cash bail, only that it cannot be “excessive.” A system evaluating flight risk and potential danger to the public does not amount to a demand for large sums of money, thus appearing to pass constitutional muster.
Nor did the 11th Circuit decide just as Bailey claimed. Instead, the Atlanta-based court ruled valid in mid-summer a local law in Calhoun, GA guaranteeing a bail hearing within 48 hours of arrest. That doesn’t say cash bail is a must.
So it would likely be a mistake for other lawyers to follow the implicit advice of the attorney general hopeful.
In fact, the idea of ending cash bail has been around for decades. Brown first advocated it in his 1979 State of the State speech to the Legislature, almost forty years before making it reality.
“Today,” he said, “California reforms its bail system so that rich and poor alike are treated fairly.” His comment echoed arguments of advocates who long maintained the rich easily go free while awaiting trial, but when the poor face similar charges, they often languish months or years away from home and family.
Amplified Lt. Gov. Gavin Newsom, the Democratic candidate for governor, “A person’s checking account balance should never determine how they are treated under the law. Cash bail criminalizes poverty…”
While cash resources will supposedly no longer have a role in pre-trial release, critics of the new law maintain it gives too much power to judges, empowered to order accused persons held however long it takes to adjudicate their cases.
That means money will still have a role, even if it’s used only to hire competent and influential lawyers. The indigent accused, often represented by overworked public defenders or court-appointed attorneys, won’t be able to marshal the same kind of campaign for freedom as the wealthy.
In a sense, the new system will be a lot like the current post-verdict sentencing system, where court officials recommend a sentence and generally see their recommendations followed, with lawyers sometimes able to influence their findings.
This may not be fair, but it has survived every constitutional challenge. Most likely, so will California’s new no cash bail system.
Email Thomas Elias at email@example.com. His book, “The Burzynski Breakthrough: The Most Promising Cancer Treatment and the Government’s Campaign to Squelch It,” is now available in a soft cover fourth edition. For more Elias columns, visit http://www.californiafocus.net
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