Bail must always be set in an amount that a defendant can afford
In re Brown (Cal. Ct. App., Mar. 14, 2022, No. B313533) 2022 WL 766252, at *1
Summary: The Supreme Court held in In re Humphrey (2021) 11 Cal.5th 135(Humphrey) that conditioning pretrial release from custody solely on whether an arrestee can afford bail is unconstitutional. When nonmonetary conditions of release cannot adequately protect the safety of the public and victims and ensure an arrestee’s appearance at trial and bail is necessary, the trial court “must consider the arrestee’s ability to pay the stated amount of bail—and may not effectively detain the arrestee ‘solely because’ the arrestee ‘lacked the resources’ to post bail.” When no option other than refusing pretrial release can reasonably protect the State’s compelling interest in victim and community safety, the Humphrey Court continued, “a court must first find by clear and convincing evidence that no condition short of detention could suffice and then ensure the detention otherwise complies with statutory and constitutional requirements.” The trial court may not make continued detention depend on the arrestee’s financial condition. The superior court denied Brown’s motion, filed after the decision in Humphrey, to reduce his $2.45 million bail to an amount he could afford.
Brown remained in custody awaiting trial . The court of appeal granted his petition for writ of habeas corpus and ordered the trial court to hold a new hearing at which it is to consider nonmonetary alternatives to money bail, determine Brown’s ability to afford the amount of money bail if it is to be set, and follow the procedures and make the findings necessary for a valid order of detention.
At his initial arraignment Brown’s bail was set at $1.45 million. Brown’s bail was increased to $3.45 million after an amended felony complaint was filed. Brown’s counsel orally moved to reduce bail. After consultation with the prosecutor, the trial court reduced Brown’s bail to $2.45 million.
Brown’s Post-Humphrey Motion To Reduce Bail
After the Supreme Court’s decision in Humphrey, Brown moved for release on his own recognizance or, alternatively, to have his bail reduced to no more than $1,000. In his motion Brown admitted “the crimes he is being accused of are serious and violent,” but argued he was indigent and would accept nonfinancial conditions of release, including electronic monitoring, community housing, home detention, treatment and education programs, a pretrial case manager and a protective order. Brown also acknowledged he had a criminal record but insisted his prior convictions were for nonviolent or nonserious offenses. Brown attached a declaration attesting to his indigency and lack of current employment and averred he had no future prospects of income.
The court stated Humphrey was inapplicable to Brown’s case because Humphrey did not apply to a case where the defendant was charged with a serious and violent felony. The trial court said, even when Humphrey applied, it required consideration of an arrestee’s financial condition only if the court first determined there existed unusual circumstances justifying a deviation from the approved bail schedule.
Standard of Review and Constitutional standard for bail
A trial court’s ultimate decision to deny bail is reviewed for abuse of discretion.
Article I, section 12, of the California Constitution establishes a person’s right to obtain release on bail from pretrial custody, identifies certain categories of crime in which such bail is unavailable, prohibits the imposition of excessive bail as to other crimes, sets forth the factors a court shall take into consideration in fixing the amount of the required bail, and recognizes that a person ‘may be released on his or her own recognizance in the court’s discretion.
In re Humphrey
In Humphrey, the Supreme Court stated, in principle, “pretrial detention should be reserved for those who otherwise cannot be relied upon to make court appearances or who pose a risk to public or victim safety.” But, the Court explained, “it’s a different story in practice: Whether an accused person is detained pending trial often does not depend on a careful, individualized determination of the need to protect public safety, but merely—as one judge observes—on the accused’s ability to post the sum provided in a county’s uniform bail schedule.The Supreme Court undertook a fundamental reexamination of the use of money bail as a means of pretrial detention.
The Humphrey Court held, “[I]f a court does not consider an arrestee’s ability to pay, it cannot know whether requiring money bail in a particular amount is likely to operate as the functional equivalent of a pretrial detention order. Detaining an arrestee in such circumstances accords insufficient respect to the arrestee’s crucial state and federal equal protection rights against wealth-based detention as well as the arrestee’s state and federal substantive due process rights to pretrial liberty.” Such pretrial detention, “is impermissible unless no less restrictive conditions of release can adequately vindicate the state’s compelling interest.”
To safeguard the constitutional rights it had identified and to effectuate its holding that courts must consider an arrestee’s ability to pay and the efficacy of less restrictive alternatives when setting bail, the Humphrey Court outlined a required “general framework” for bail determinations. The Court emphasized that trial courts “must undertake an individualized consideration of the relevant factors. These factors include the protection of the public as well as the victim, the seriousness of the charged offense, the arrestee’s previous criminal record and history of compliance with court orders, and the likelihood that the arrestee will appear at future court proceedings.”
Trial court failed to apply Humphrey property
Here, the trial court deprived Brown of his right to a bail determination that complied with the Supreme Court’s decision. The court incorrectly stated Humphrey was inapplicable in cases in which the defendant had been charged with a serious or violent felony. The trial court’s use of an unreasonably high, unaffordable bail to protect the public and past victims from the was the equivalent of a pretrial detention order and directly at odds with the requirements for a constitutionally valid bail determination.
The petition as granted and the Superior Court was directed to vacate its order denying Brown’s motion for release on his own recognizance, nonfinancial conditions for release or reduction in bail and t hold a new hearing at which the court considers Brown’s motion in a manner that is consistent with the Supreme Court’s decision in Humphrey and this court’s opinion