The Hon. Brett R. Alldredge (Ret.) is a retired California Superior Court judge. The opinions expressed herein are his alone, although he wishes to acknowledge the significant lifetime body of work of Tim Schnake.

The United States produces the finest, most highly skilled medical professionals in the world. The best and brightest travel to America to be educated and trained at its exceptional academic and medical institutions. No one, however, including those very same esteemed professionals,
pretends that America’s health care system comes even close to being universally admired.

What was allowed in just over a generation or two to stand between the world’s best physicians and those in their direct care that now prevents millions from benefitting from such presumptive good fortune? The health insurance industry, a multi-billion dollar for-profit industry so lucrative and influential that while living in a land of unparalleled wealth and resources, millions are simply unable to afford the care that their doctors are so well
trained to provide. It was never by intentional design of the expert professionals. We just sat by while the moneychangers determined how health care is delivered without it having to even masquerade as an improvement. And no honest and trusted physician pretends that we’re the
better for it.

And so it has come to what now passes for pretrial justice in America. The uncomfortable truth is while justice remains literally carved into the walls of the highest court in the land, the justice system allows half a million unconvicted individuals to languish in jail cells every night without a timely determination by a judge that they likely committed any crime while thousands of arrested and obviously threatening individuals walk the streets of our communities completely unsupervised.

Just as in the delivery of health care, instead of a pretrial justice system reflecting intentional expert design and individual attention, we have off-loaded that critical determination to a multi-billion dollar for-profit business. An industry so lucrative and influential that despite living in a
country admired around the world for its models of jurisprudence, thousands of individuals who pose no discernable risk to public safety are left unable to purchase their pretrial liberty while obviously dangerous people do it everyday. And no knowledgeable judge honestly pretends that we are safer, fairer, or the better for it.

Although I remain aware of modest evidence-based pretrial justice improvements throughout the country, I can only speak firsthand about the uneven and failed efforts in California, the state in which I served as a Superior Court judge in an exclusive felony pretrial assignment for
essentially the last decade of my thirty year career. Over that time I made thousands of pretrial detention decisions, brought in many of the nation’s experts on the subject to educate our local judges, trained our state’s judiciary on best pretrial practices, and written to enhance the public’s understanding of a system on which they are intentionally misinformed.

After a number of unsuccessful efforts by the California legislature to address and reform a pretrial process that had transformed without conscious intention over time into a “pay for your liberty at the window under the neon sign” substitute for justice, in 2021 the California State
Supreme Court issued an unmistakably clear ruling in In Re Humphrey, 11 Cal. 5th, 135. In an unanimous opinion, the court held that “conditioning freedom solely on whether an arrestee can afford (money) bail is unconstitutional.” Courts can only deny the presumptive “fundamental right to pretrial liberty” in “unusual circumstances.” Since then, three separate
courts have found that their county’s pre-arraignment use of default money-bail schedules to determine pretrial freedom violated constitutional equal protection and due process rights (Buffin v. City and County of San Francisco, 4:15-cv-04959 (N.D. Cal.), (Welchen v. Sacramento,
2:16-cv-00185 (ED Cal), (Urquidi v. City of Los Angeles, Case No. 22STCP04044).

So, why is Scott Greenfield’s recent piece as timely today as it was years ago before Humphrey, Buffin, Welchen, and Urquidi?  Because far too many courts and judges continue to do it the only way they know. They do it to avoid negative attention and shield themselves from criticism. They do it because they can with little effective remedy for correction.

Borrowing from the insight and pen of Pulitzer Prize-winning journalist Robert Greene, judges who continue to use the shield of money-bail schedules as a substitute for individual and intentional justice “apparently didn’t get the Humphrey memo. Or they got it but didn’t read it. Or they read it but didn’t understand it. Or they understood it just fine but didn’t like it, because they realize it means they can no longer bank on a defendant’s (inability to afford monetary bail) as a means to keep him or her locked up.”

Believe me, those of my colleagues who continue everyday to allow pretrial detention or release to be determined by an always arbitrary and often capricious money-bail schedule but nevertheless do it anyway understand the memo just fine. They just don’t like it.

They don’t like it because to hold a timely hearing for every detained person, with the charged individual present along with counsel, accept and thoroughly evaluate reliable offers of proof, determine whether the accused poses such a risk to alleged victim or public safety or unreasonably risks fleeing the jurisdiction to avoid prosecution is such that no less restrictive
means exists other than pretrial detention, and if not, carefully consider and order all least restrictive conditions of release that protect any alleged victims and the general public, then announce all of those findings on the record takes time. Time that one hundred, two hundred, or more daily event calendars are not designed for.

They don’t like it because it assumes and imbues them with individual judicial responsibility for each decision despite the fact that the absolutely unforeseeable future conduct of another, even when carefully calculated, can never be reduced to zero.

They don’t like it because an uninformed public, based on an intentional blame and accusatory narrative, and a headline seeking media will shout that it is the judge’s “fault” for any and every future event, however unforeseeably unlikely.

If actual justice is our true goal, it is essential that only judges make the individual and intentional decisions that honors both public safety and fairness. How then did we come to such a radical departure from judicial intentionality when it comes to pretrial justice? Because the use of money-bail has been intentionally hijacked and sold as something quite different than its historical purpose and intended result.

“Bail,” when properly understood, is not money. The word only makes sense within a just and safe pretrial system when it is clearly understood by everyone as conditional release.

A thoughtful judge is able to consider a number of relevant conditions that vindicate the legitimate governmental interests related to public safety. The initial determination in every case must be this: Does the arrestee pose such a risk to victim or general public safety that no less restrictive conditions other than detention can adequately protect against those legitimate interests? If so, a clear and intentional detention order should be made and findings fully explained. If not, in all other cases the arrestee is guaranteed release on the least restrictive conditions that are carefully tailored to the individual and facts of the case to protect public safety.

The requirement of having to post an affordable money deposit or its equivalent (the proverbial deed to the ranch) is only rightly understood and properly used if necessary as a sub-condition of the promise to return to court condition. It bears absolutely no relationship whatsoever to public safety and should not be allowed to substitute for an intentional decision to detain.

The very essence of the current default money-bail system could not be more arbitrary. What other word allows for the existence of different bail schedules in each one of California’s 58 counties not subject to recent bail litigation? How else to honestly explain that the market price to purchase one’s pretrial release with the same charges can be either $10,000, $35,000, or $50,000 depending on in which one of three adjacent counties the alleged offender was arrested? How else to defend the absurdly round numbers themselves, or why no one has ever produced any evidence to demonstrate why a $10,000 bond vindicates any legitimate government interest as opposed to $8,000, $12,000, or $14,213.50? The honest admission is that any schedule-based money-bail system only fulfills legitimate goals, if ever at all, randomly and by accident.

When listening to the recent oral argument before the California Supreme Court in In Re Kowalcyzk, an associate justice asked counsel what was surely a rhetorical question: ”Who in the system should weigh risk?” The question presumes that it won’t be the legislature who is never present to hold an individualized hearing. It most certainly is not the money-bail agent who can only make his fortune if a woman in the arrestee’s life can somehow tap every available resource to buy a bond at the cost of 10% (why not 5 or 25?) of the scheduled money-bail amount. An amount, by the way, that is never refundable by the industry, even if the arrestee makes every court appearance. Even if no charges are ever filed.

The answer to the justice’s necessary question is that risk can only be weighed by a judge’s decision to either intentionally detain an arrestee pretrial within the narrow limits of the state’s law or order his or her immediate release on appropriate conditions.

Sixty years ago, then Attorney General of the United States, Robert F. Kennedy, testified before the United States Judiciary Committee and asked the question, “What is the justice in a system which, when the stakes are between either jail or freedom, can leave that decision up to a private businessman?”

We ask and expect much from our judges, the great majority of whom labor diligently to do the right thing for the right reasons. We often ask these otherwise ordinary women and men to act with extraordinary courage. We choose them carefully and rightly hold them to the highest ethical standards. It will solely be through them, not from a profit maximizing industry, that we should rightfully expect timely, individual, intentional, and morally rigorous pretrial justice.