Summary Judgment Ruling is Major Victory Against Money Bail

Natasha Baker, Staff Attorney, Equal Justice Under Law.

After nearly seven years of litigation, Equal Justice Under Law has secured an important victory in the fight against money bail.

Money bail sets a price tag on freedom by forcing arrestees to pay an arbitrary amount of money to secure release before trial. It is a common practice in criminal courts throughout the country and is a major contributor to creating one system of justice for the rich and another for the poor.

In 2016, Equal Justice Under Law filed Welchen v. Sacramento, challenging Sacramento County, CA’s pre-arraignment money bail system. Just last month, Judge Troy L. Nunley of the United States District Court for the Eastern District of California granted summary judgment to the plaintiff, agreeing that the county’s bail system violates substantive due process because inability to afford bail results in a deprivation of liberty prior to trial.

Judge Nunley found that strict scrutiny applied, denied Defendants’ arguments on mootness, and granted summary judgment to the plaintiff.

Given the fundamental interest at stake (pretrial liberty), Judge Nunley found that strict scrutiny applied. Judge Nunley found that the government did not satisfy strict scrutiny, as the bail system was not narrowly tailored and reasonable alternatives existed to satisfy relevant state interests (such as flight risk). Judge Nunley also denied Defendants’ arguments on mootness, as the judge found that our plaintiff fell within the “capable of repetition but evading review” exception.

Some may be wondering how this fits in with the California Supreme Court’s recent decision in In re Humphrey, 482 P.3d 1008 (Cal. 2021), which changed the money bail system statewide. The decisions are complimentary: Humphrey addressed the role that judges play, holding that judges must consider ability to pay when setting bail. The hope of Humphrey, then, is that people are no longer detained solely because they can’t afford bail. 

Money bail sets a price tag on freedom by forcing arrestees to pay an arbitrary amount of money to secure release before trial. 

Our case focuses on the period before arrestees see a judge: there is often a multi-day (and sometimes longer) wait between when someone is arrested and when they see a judge for the first time (known as the arraignment). During that waiting period, the sheriff or the district attorney or the attorney general often have their own money bail schedule, and arrestees can pay to be released before their arraignment. Our case applies to those sheriffs and prosecutors in Sacramento County; they cannot detain an arrestee pre-arraignment simply because that person can’t afford bail. In the words of Judge Nunley, our plaintiff’s pre-arraignment incarceration “significantly deprived him of his fundamental right to pretrial liberty solely due to his indigence,” and is therefore unconstitutional.

The next step is to brief the relief we want, which is to design a pretrial release process that properly considers valid concerns such as flight risk, while not resulting in people being detained simply because they can’t afford bail. Equal Justice Under Law previously secured a similar victory to end pre-arraignment money bail in San Francisco County in Buffin v. San Francisco.

We hope that one day we will get to a world where money bail doesn’t exist at all and people are no longer incarcerated for their poverty. This victory is one critical step in that direction.