Guest Commentary: U.S. District Judge Nunley’s Ruling in Favor of ‘Ability-to-Pay’ Bail Didn’t Go Far Enough

Sacramento County’s Broken Jailing System Continues to Violate Human Rights

by the Justice2Jobs Coalition

Sacramento, CA. On September 5, the U.S. District Judge Troy L. Nunley ruled in Welchen v. County of Sacramento, Sacramento County Sheriff, and California Attorney General in favor of Gary Welchen, who asserted that unaffordable cash bail is unconstitutionally used by judges in Sacramento County to detain people merely accused of committing a crime.

People accused are detained for no other reason, not public safety nor risk of flight, than their inability to pay hundreds, thousands, or even millions of dollars to be released from jail while awaiting case disposition.

The Welchen case, originally filed in 2016 by Equal Justice Under Law (EJUL), a civil rights firm, is a win for people who live in Sacramento’s underserved and overpoliced neighborhoods, are impoverished, experiencing untreated mental illness, or who are Black and brown, but the ruling does not go far enough.

Judge Nunley hinted at the full decision a year ago when he entered a partial summary judgment affirming that Sacramento County Court’s bail schedule was unconstitutional. This gave the Sacramento Superior Court an opportunity to right a significant wrong in the system. Sadly, little changed and the jail population remained as high as pre-pandemic levels (~3,300 persons).

Further, people who have been accused of crimes disclose that they were never asked if they had the ability to pay their bail in accordance with the previously decided California Supreme Court ruling in Humphrey.

Confirming those disclosures are defense attorneys who tell advocates that some judges simply ignore the law. Even worse, people who have been accused of crimes further disclose that some defense attorneys just “go along to get along” and do not zealously fight for the accused’s pre-release freedom.

Sacramento County court-watchers report witnessing this lack of zealous advocacy. We speculate that this is part of the institutionalized bias structure and is embedded practice of court actors for several reasons:

  • Assimilation to a system that has used bail for many decades as a normalized response to increased media influence that sways public concern for safety while at the same time deprioritizing the due process protections that preserve the presumption of innocence.
  • Acceptance of a practice without questioning bias and historic, harmful intentions which has been unconstitutionally normalized using bail as a mechanism to prevent release.
  • Increased pressure from county administration to county employed defense attorneys to abandon the inherent adversarial practice of criminal defense, and legal standards prescribed by the American Bar Association to be zealous advocates and courageous, devoted counselors who center the best interest of the client as their primary objective. And instead, collaborate with other county-described “Justice Partners,” including judges.
  • Judges’ concerns for reelection, therefore acquiescing to the situational will of the people instead of following the law.
  • Defense attorney fears that the judge will retaliate.

This has resulted in people being detained for days, weeks, months, or even years before the resolution of their case; subject to the harms of detention when many of them may ultimately be found innocent or have their case dismissed outright.

“The amount of time people spend in a pretrial status versus a sentenced status impacts the options for release as well as service options…Looking at ways to reduce lengths of stay during the pretrial phase would have high impact on reducing the jail population. However, the average length of stay obscures a distribution of stays that are generally much shorter, especially for misdemeanors which stay, on average 7 days, with almost of all of it spent pretrial.” Kevin O’Connell, Sacramento Jail Study

“This speaks directly to what’s missing from the Welchen decision—it doesn’t address the length of time someone is experiencing pretrial incarceration and by law, presumed innocent.” explains McGeorge Law Student, Khalil Ferguson.

Following decisions like In re Humphrey and Buffin, Judge Nunley doubled down in support of those decisions which should remind Sacramento Superior Court that they continue to be unethical and unconstitutional when they do not consider ability to pay and other mechanisms to rapidly release those accused of offenses. There was an opportunity for the Welchen ruling to improve the release process by including specific time frames in which persons should have their cases reviewed, go before a judge, and be released. Buffin originally suggested an 18-hour maximum time frame, but ruled to allow the parties to create a plan that focused on a quick turnaround for release.

“… the parties in Buffin stipulated to a ‘heavily negotiated’ injunction that not only enjoined enforcement of the bail schedule in San Francisco County, but also modified procedures related to pre-arraignment release in that jurisdiction.” Welchen v. Bonta [referencing Buffin]

Notably, according to San Francisco Pretrial Diversion Project, the community-based entity that has operated San Francisco’s pretrial release program for nearly 50 years, the majority of people who are eligible for release are released in less than 18 hours. This is achieved due to funding that enables 24-hour staffing and operations that facilitates rapid intake and assessment of those who are jailed.

(According to the San Francisco Pretrial Diversion Project, a subset of recently arrested people are eligible for release prior to their first court appearance. This subset is released within 18 hours. The majority of their clients are not released from jail until after their first appearance, which typically takes place 72 hours after arrest.)

Contrary to San Francisco, the majority of people detained in Sacramento County’s jail are pretrial, ~80%. There are people who have been held pretrial in Sacramento County jails for over five years.

Although some in the jail have been remanded to custody without bail in the name of protecting the public, most have a cash bail amount set that, if paid, would secure their release. People are by and large wasting in jail due to unaffordable bail, but they are often there in the first place because of a lack of access to much needed mental health or housing services.

These services are either nonexistent or hard to access, resulting in people being charged with minor offenses associated with their unhoused or mental health status such as loitering, disturbing the peace, or even substance use to self-medicate.

They are released back into the community with no continuity of care and remain vulnerable to re-arrest for minor offenses because they are unable to break this cycle of incarceration without reliable access to wraparound community-based services.

Although this is a minor win for the pretrial system in Sacramento County, it is insufficient to address the persistent and structural race and class disparities facing Sacramento residents.

Justice2Jobs is a rising abolitionist coalition of community organizers, public health analysts, policy and legal professionals, academics, restorative service providers, and economists who reject the current punishment bureaucracy and look at justice systemically through a racial equity lens—excavate and report facts, interrogate processes, educate and create solutions for economically empowered and safe communities.

About The Author

Disclaimer: the views expressed by guest writers are strictly those of the author and may not reflect the views of the Vanguard, its editor, or its editorial board.

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