Article 1, section 28 — not section 12 — controls bail under the California constitution
Overview Confusion reigns about the constitutional status of bail because the California constitution contains two contradictory provisions on the subject. Article 1, section 12 provides that “[a] person shall be released on bail by sufficient sureties” except for certain enumerated exceptions.[1] But article 1, section 28 says “[a] person may be released on bail by sufficient sureties” except for capital crimes.[2] Worse: section 28 directs courts to make public safety and the safety of the victim the “primary considerations in bail decisions.”[3] Some view bail as an absolute right under section 12, yet that is difficult to reconcile with the...
