California Supreme Court states financial circumstances must be considered in setting bail (Humphrey)
The State Supreme Court posted an order on the docket of In re Humphrey (2018) 19 Cal.App.5th 1006, pending as # S247278, making Part III of the Court of Appeal decision in the case legal precedent. That part of the appellate opinion holds that due process requires consideration of the defendant’s financial circumstances in setting conditions of release. And it holds that bail schedules cannot be used by the court in setting conditions for release of a defendant when pretrial detention is not required.
Background of the case in San Francisco Superior Court
Humphrey, a retired shipyard laborer, then 63 years of age and a lifelong resident of San Francisco was arrested and charged with first degree robbery (Pen. Code, § 211),3 first degree residential burglary (§ 459), inflicting injury (but not great bodily injury) on an elder and dependent adult (§ 368, subd. (c)), and theft from an elder or dependent adult, charged as a misdemeanor. (§ 368, subd. (d).)
At his arraignment, Humphrey sought release on his own recognizance without financial conditions based on his advanced age, his community ties as a lifelong resident of San Francisco and his unemployment and financial condition, as well as the minimal property loss he was charged with having caused.
The prosecutor did not affirmatively argue for pretrial detention pursuant to article 1, section 12, of the California Constitution, but simply asked the court to “follow the PSA [Public Safety Assessment] recommendation, which is that release is not recommended,” and requested bail in the amount of $600,000, as prescribed by the bail schedule, and a criminal protective order directing petitioner to stay away from the victim.
The trial court set bail in the amount of $600,000 and signed criminal protective orders to stay away from the victim.
Humphrey filed a motion for a formal bail hearing pursuant to section 1270.25 and an order releasing him on his own recognizance or bail reduction, claiming that “bail, as presently set, is unreasonable and beyond the defendant’s means” and “violates the Eighth Amendment’s proscription against excessive bail.”
Humphrey cited In re Christie, 92 Cal.App.4th at page 1109, 112 Cal.Rptr.2d 495, which prohibits the setting of bail in an amount “that is the functional equivalent of no bail,” and Lopez-Valenzuela v. Arpaio (9th Cir. 2014) 770 F.3d 772, 780-781, which requires criteria warranting pretrial detention are narrowly tailored to serve a compelling state interest, in order to satisfy substantive due process.Humphrey argued that the substantive due process guarantee of the Fourteenth Amendment entitled him to an individualized determination of his right to be released prior to trial on his own recognizance or bail after he was afforded an opportunity to present evidence relating to any factors that might affect the court’s decision whether to release him pending trial.
Racial disparities in bail determination
Humphrey cited extensive statistical studies and other data showing racial disparities in bail determinations in adult criminal and juvenile delinquency proceedings in state and federal courts in all regions of the country, none of which were challenged by the district attorney. A 2013 study of San Francisco’s criminal justice system found that although booked Black adults appear to be “more likely than booked White adults to meet the criteria for pretrial release,” “Black adults in San Francisco are 11 times as likely as White adults to be booked into County Jail” prior to trial. (W. Hayward Burns Institute, San Francisco Justice Reinvestment Initiative: Racial and Ethnic Disparities Analysis for the Reentry Council, Summary of Key Findings (2013) p. 2.) The motion argued that “[t]he court should keep these stark facts in mind in setting bail so as not [to] exacerbate any unconscious, implicit or institutional bias that might exist.”
The motion for a bail hearing also provided considerable information about petitioner’s family and personal history.
Humphrey’s request to make part III of In re Humphrey (2018) 19 Cal.App.5th 1006 precedent was granted in part. Part III of the opinion now has precedential effect. (See Cal. Rules of Court, rule 8.1115(e)(3).)
Bail Determinations Must be Based upon Consideration of Individualized Criteria
A defendant’s ability to pay before setting money bail must be considered and is of the fundamental requirement that decisions that may result in pretrial detention must be based on factors related to the individual defendant’s circumstances.A defendant may not be imprisoned solely due to poverty and that rigorous procedural safeguards are necessary to assure the accuracy of determinations that an arrestee is dangerous and that detention is required due to the absence of less restrictive alternatives sufficient to protect the public.” (19 Cal. App. 5th at 1041.)
Bail schedules provide standardized money bail amounts based on the offense charged and prior offenses without considering other characteristics of an individual defendant that bear on the risk he or she currently presents. These schedules do not provide the individualized inquiry required before a court can order pretrial detention. Bail schedules undermine the judicial discretion necessary for individualized bail determinations, as based on inaccurate assumptions that defendants charged with more serious offenses are more likely to flee and reoffend, and as enabling the detention of poor defendants and release of wealthier ones who may pose greater risks.” (19 Cal. App. 5th at 1042.)
“The bail schedule also serves useful functions in providing a means for individuals arrested without a warrant to obtain immediate release without waiting to appear before a judge (§ 1269b). The schedule is a starting point for the setting of bail by a judge issuing an arrest warrant or for a court setting bail provisionally to allow time for assessment of a defendant’s financial resources and less restrictive alternative conditions by the pretrial services agency.
Strict reliance upon the bail schedule without consideration of a defendant’s ability to pay, as well as other individualized factors bearing upon his or her dangerousness and/or risk of flight, violates the requirements of due process for a decision that may result in pretrial detention. Once the trial court determines public and victim safety do not require pretrial detention and a defendant should be admitted to bail, the important financial inquiry is not the amount prescribed by the bail schedule but the amount necessary to secure the defendant’s appearance at trial or a court-ordered hearing.” (19 Cal. App. 5th at 1043-1044.)