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California Supreme Court Announces Conditioning Pretrial Release on Ability to Afford Bail Unconstitutional

Kenneth Humphrey, 66, was accused of robbing his 79-year-old neighbor of seven dollars and a bottle of cologne. The trial court initially set bail at $600,000. Humphrey petitioned for a bail hearing and informed the court of recent progress he had made in obtaining an education and his participation in drug treatment. He explained that this latest incident was the result of a relapse.

The court reduced his bail to $350,000 because of his willingness to participate in treatment and imposed an additional condition that he participate in residential treatment. The public defender informed the court that Humphrey was too poor “to make even $350,000 bail” and wouldn’t be able to participate in the required treatment. The court neither commented on Humphrey’s inability to afford bail nor considered whether nonfinancial conditions of release could meaningfully address public safety concerns or flight risk.

Humphrey sought habeas relief in the Court of Appeal (“COA”). He argued that requiring money bail as a condition of release at an amount the accused cannot pay is the functional equivalent of a pretrial detention order – which can be justified only if the State establishes a compelling interest in detaining the accused and demonstrates that detention is necessary to further that purpose.

The COA agreed, declaring that due process and equal protection “dictate that a court may not order pretrial detention unless it finds either that the defendant has a financial ability but failed to pay the amount of bail the court finds necessary to ensure his or her appearance at future court proceedings; or that the defendant is unable to pay that amount and no less restrictive conditions of release would be sufficient to protect the victim and the community.” The COA granted habeas relief and directed the trial court to conduct a new bail hearing.

At the new hearing, the trial court ordered Humphrey released on various nonfinancial conditions. Weeks later, the California Supreme Court – upon request of the District Attorney of the City and County of San Francisco – granted review on the Court’s own motion to address the constitutionality of money bail as used in California as well as the proper role of public and victim safety in making bail determinations.

The Court observed “[i]t is one thing to decide that a person should be charged with a crime, but quite another to determine under our constitutional system, that the person merits detention pending trial on that charge.” The heart of the instant case was that Humphrey remained in custody simply because he could not post bail; whereas, a person facing similar charges who has greater means would’ve been able to post bail and be released. The Court noted that the U.S. Supreme Court “has long been sensitive to the treatment of indigents in our criminal justice system.” Bearden v. Georgia, 461 U.S. 660 (1983).

While neither the U.S. Supreme Court nor the California Supreme Court had yet held that a judge must consider the amount an accused can pay when fixing the amount of bail money, the California Supreme Court took guidance from Bearden.

In Bearden, The U.S. Supreme Court resolved the question of “whether a sentencing court can revoke a defendant’s probation for failure to pay the imposed fine and restitution, absent evidence and findings that the defendant was somehow responsible for the failure or that alternative forms of punishment were inadequate.” At stake in Bearden was the probationer’s conditional freedom after pleading guilty to burglary and theft. Georgia, via granting Bearden probation, had determined its “penological interests” did not require imprisonment and that a fine and restitution could be the appropriate penalty. His failure to pay those debts required reevaluation by the sentencing court to determine if imprisonment was then required to satisfy the State’s penological interests.

The Bearden Court ruled that to determine if imprisonment was required, the sentencing court had to find (1) that he had the means to pay and willfully refused to do so or (2) that alternative measures would not be adequate to meet the State’s penological interests. The U.S. Supreme Court concluded “[o]nly if the sentencing court determines that alternatives to imprisonment are not adequate in a particular situation to meet the State’s interest in punishment and deterrence may the State imprison a probationer who has made a sufficient bona fide effort to pay.”

In light of Bearden, the California Supreme Court concluded that in the money bail context, “[t]he accused retains a fundamental constitutional right to liberty.” United States v. Salerno, 481 U.S. 739 (1987). It also referenced the principle articulated in Salerno that “liberty is the norm, and detention prior to the trial or without trial is the carefully limited exception.”

Additionally, the Court explained that the State’s interest in the bail context is not to punish but is to ensure that the defendant appears at court proceedings and to protect the victim as well as the public from future harm. Cal. Const., art. I, §§ 12 and 28, subd. (f)(3). With those guiding principles in mind, the Court affirmed the decision of the COA.

The Court announced a general framework to provide guidance in making bail determinations. Of primary concern are the safety of the victim and the public, Cal. Const., art. I, § 28, subd. (f)(3), followed by flight risk. The trial court is to assume the truth of the charges. Ex Parte Duncan, 53 Cal. 410 (1879). Having done so, the court must find – by clear and convincing evidence – the degree to which the accused poses a risk to the victim or the public and the risk of flight, the Court instructed.

In those cases where an accused poses little risk of harm to others and little risk of flight, the court may offer or release with appropriate conditions. Cal. Pen. Code, § 1270. If there is risk to the public or the victim, or a risk of flight, the court should consider whether nonfinancial conditions of release will protect those interests. Finally, if the court concludes that money bail is necessary, the court must consider the individual’s ability to pay, the seriousness of the charged offense, and the arrestee’s criminal record and set bail at a level the arrestee can reasonably afford – unless there is a valid basis for detention. If the court concludes – based on clear and convincing evidence – that the safety of the public or the victim, or the accused’s appearance in court, cannot be reasonably assured if the accused is released under any nonfinancial conditions and the accused has no ability to pay money bail, the court may order the accused detained.

Katherine Hubbard, an attorney with Civil Rights Corps who has represented Humphrey throughout this case, told National Public Radio host Ari Shapiro of “All Things Considered” that “[t]his decision should substantially reduce pretrial detention in California and that’s really important because pretrial detention often has devastating consequences for a person’s life.”

Hubbard cited many of those consequences, including loss of a job, housing, or loss of custody of one’s children. Pretrial detention also has devastating impacts on the person’s case, e.g., causing an innocent person to plead guilty simply to get out of jail. Pretrial detention is correlated with people receiving longer sentences when compared with those who are released pretrial. Money bail also disproportionately affects Black and brown communities; consequently, reducing pretrial detention will have a significant impact in terms of racial justice and ending mass incarceration. See: In re Humphrey, 482 P.3d 1008 (Cal. 2021). 


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Related legal case

In re Humphrey



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