Recently the California Court Of Appeal announced that no longer can Judges hold indigent Criminal Defendants in custody on high bail unless first considering jail alternatives. The Case will likely send shockwaves through the criminal justice system and will spark a much needed bail reform in the state.

The First District Court of Appeal in In re Humphrey, recently held that when a court sets bail, it must inquire into and determine a defendant’s ability to pay, consider nonmonetary alternatives to money bail, and, if the court determines that a defendant is unable to afford the amount of bail the court finds necessary, follow the procedures and makes the findings necessary for a valid order of detention.

Once the court concludes that the defendant cannot pay bail, the burden of proof is clear and convincing evidence of being a threat to public safety and that there are no adequate non-bail alternatives such as house arrest, home confinement, curfew, residential rehab, etc. All of these things are less costly than wharehousing a person in jail.

Research studies have consistently found that African American defendants receive significantly harsher bail outcomes than those imposed on white defendants. Specifically, nearly every study on the impact of race in bail determinations has concluded that African Americans are subjected to pretrial detention at a higher rate and higher bail amounts than are white arrestees with similar charges and criminal histories. Over twenty-five studies document racial disparities in bail determinations in state cases, federal cases, and juvenile delinquency proceedings. The adverse impact of race and ethnicity on bail determinations is not isolated to particular regions of the country, but is a pervasive and widely-acknowledged problem, documented in vast areas of the country, and similarly affecting Latino defendants.