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California Supreme Court Affirms Right To Affordable Bail

In The Supreme Court Of California

In Re Kenneth Humphrey On Habeas Corpus; S247278First Appellate District, Division Two A152056;San Francisco City And County Superior Court 17007715; March 25, 2021

In an unanimous decision, the California Supreme Court held that:“No person should lose the right to liberty simply because that person can’t afford to post bail.”  “The median bail amount in California ($50,000) is more than five times the median amount in the rest of the nation (less than $10,000).”

The Court held it is unconstitutional to incarcerate a defendant solely because he lacks financial resources.

The court affirmed the Court of Appeal’s decision in Humphrey holding that: “An arrestee may not be held in custody pending trial unless the court has made an individualized determination that (1) the arrestee has the financial ability to pay, but nonetheless failed to pay, the amount of bail the court finds reasonably necessary to protect compelling government interests; or (2) detention is necessary to protect victim or public safety, or ensure the defendant’s appearance, and there is clear and convincing evidence that no less restrictive alternative will reasonably vindicate those interests.”  The burden of proof is clear and convincing evidence. Humphrey claimed that because the trial court failed to consider his ability to pay or the efficacy of less restrictive conditions of release, he was detained without adequate justification. The Court agreed.

Detention Prior to Trial is a Limited Exception

 The Court emphasizes that “liberty is the norm, and detention prior to trial or without trial is the carefully limited exception.”   Only in “unusual circumstances” where, by clear and convincing evidence, the court finds the offense is “sufficiently weighty” should a pretrial defendant be detained without bail. Bail can only be used where  a court  finds no other options to ensure return to court or prevent danger to the public.

Pre-trial defendants must be release on their own recognizance, with or without narrowly tailored conditions to ensure return to court or to prevent danger to public. Conditions of release can address  any public safety concerns. “Other conditions of release — such as electronic monitoring, regular check-ins with a pretrial case manager, community housing or shelter, and drug and alcohol treatment — can in many cases protect public and victim safety as well as assure the arrestee’s appearance at trial.”

Affordable bail

If the court sets bail, it must be affordable bail matter

The Court recognized that pretrial incarceration may harm those accused of crimes and their families. “Studies suggest that pretrial detention heightens the risk of losing a job, a home, and custody of a child.”

Bail’s disproportionate impact on minorities

 The Supreme Court noted  that, “Humphrey, who is African American, attached a 2013 study of San Francisco’s criminal justice system, which found that “Black adults in San Francisco are 11 times as likely as White adults to be booked into County Jail” prior to trial.”  (W. Haywood Burns Inst., San Francisco Justice Reinvestment Initiative: Racial and Ethnic Disparities Analysis for the Reentry Council, Summary of Key Findings (2013) pp. 4–5.)

Bail can only be denied when  necessary to protect public safety and where there is no other less restrictive alternative. “The common practice of conditioning freedom solely on whether an arrestee can afford bail is unconstitutional.”

State’s compelling interest in assuring defendant’s appearance at trial and protecting victims and the public

 The state has a compelling interest in assuring the arrestee’s appearance at trial and protecting the safety of the victim as well as the public. The Court a knowledges that  those incarcerated pending trial unquestionably suffer a “direct ‘grievous loss’ ” of freedom in addition to other potential injuries. (Van Atta v. Scott (1980) 27 Cal.3d 424, 435 (Van Atta).) The accused may be impaired to some extent in preparing a defense. (See Van Atta, supra, 27 Cal.3d at pp. 435–436; accord, Gerstein v. Pugh (1975) 420 U.S. 103, 12. Studies suggest that pretrial detention heightens the risk of losing a job, a home, and custody of a child. (See Barker v. Wingo (1972) 407 U.S. 514, 532–533; Van Atta, at p. 436.) Time in jail awaiting trial may be associated with a higher likelihood of reoffending, beginning anew a vicious cycle. (See Heaton et al., The Downstream Consequences of Misdemeanor Pretrial Detention (2017) 69 Stan. L.Rev 711, 759–769; Pepin, 2012–2013 Policy Paper: Evidence-Based Pretrial Release (2013) p. 5; Lowenkamp et al., The Hidden Costs of Pretrial Detention (2013) p. 4.)

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. (Cf. Bearden v. Georgia (1983) 461 U.S. 660, 661–662 (Bearden) [limiting the circumstances in which an indigent probationer may be incarcerated for failure to pay a fine or restitution]; In re Antazo (1970) 3 Cal.3d 100, 113–116 (Antazo) ) In practice, pretrial detention is not based on an  individualized determination of the need to protect public safety, but merely on the accused’s ability to post the sum provided in a county’s uniform bail schedule. (See Karnow, Setting Bail for Public Safety (2008) 13 Berkeley J. Crim. L. 1, 16–17.)

Holding:The common practice of conditioning freedom solely on whether an arrestee can afford bail is unconstitutional. Other conditions of release — such as electronic monitoring, regular check-ins with a pretrial case manager, community housing or shelter, and drug and alcohol treatment — can in many cases protect public and victim safety and assure the arrestee’s appearance at trial. The 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. (Bearden, supra, 461 U.S. at pp. 667, 668.)

In order to detain an arrestee, 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.

Detention in these narrow circumstances doesn’t depend on the arrestee’s financial condition but not on the insufficiency of less restrictive conditions to vindicate compelling government interests: the safety of the victim and the public more generally or the integrity of the criminal proceedings. Allowing the government to detain an arrestee without such procedural protections would violate state and federal principles of equal protection and due process that must be honored in practice, not just in principle.

Because the trial court here failed to consider Humphrey’s ability to afford $350,000 bail (and, if he could not, whether less restrictive alternatives could have protected public and victim safety or assured his appearance in court), we agree with the Court of Appeal: Humphrey was entitled to a new bail hearing.

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