Appellate court ruling orders new bail hearing, challenges current system

SAN FRANCISCO -- In a ruling that addresses major constitutional questions on money bail and a proposed state law, the 1st District Court of Appeal ordered a new bail hearing for man arrested in San Francisco.

Thursday's ruling came in response to a challenge by San Francisco Public Defender Jeff Adachi of the $350,000 bail amount set for a low-income 64-year old defendant, Kenneth Humphrey. In re: Kenneth Humphrey, 2018 DJDAR 943.

Humphrey's case was argued by Alec Karakatsanis, founder and executive director of Civil Rights Corps, a Washington, D.C.-based organization dedicated to doing away with the money bail system in the United States.

The unanimous decision was written by Presiding Justice J. Anthony Kline. Justices Therese M. Stewart and Marla J. Miller concurred.

"Although the prosecutor presented no evidence that non-monetary conditions of release could not sufficiently protect victim or public safety, and the trial court found petitioner suitable for release on bail, the court's order, by setting bail in an amount it was impossible for petitioner to pay, effectively constituted a sub rosa detention order lacking the due process protections," Kline wrote.

The panel sent the case back to San Francisco County Superior Court for a new bail hearing. The court ordered than the hearing consider Humphrey's "ability to pay" and "nonmonetary alternatives to money bail."

Adachi has challenged bail in hundreds of criminal cases after Attorney General Xavier Becerra refused to defend bail for the man, who was charged with robbery, burglary, and other crimes after allegedly threatening a man and taking two dollars and a bottle of cologne from the victim.

The 48-page ruling, gives cash bail opponents something they have long sought: a constitutional argument against the current bail system endorsed by state appellate justices.

Another legal organization, Equal Justice Under Law, represents the plaintiffs in a federal lawsuit challenging the bail system in San Francisco. Buffin et al. v. City and County of San Francisco, 15-CV4959 (N.D. Cal., filed Oct. 28, 2015).

Both cases challenged the constitutionality of the cash bail system, but relied on somewhat different arguments. In Humphrey, Karakatsanis and Adachi argued the petitioner's Eighth Amendment protection against excessive bail was violated, as were his due process rights under the Fourteenth Amendment.

"None of our arguments has ever been that money bail is unconstitutional," Karakatsanis said. "What we are saying is if you set a money bail that people can't pay, you are ordering that they be detained."

"Does the government have an exceeding good reason for detaining this person prior to trial? If so, they have to articulate the reason in court," he added.

The Buffin complaint included 14th Amendment claims that the plaintiffs' equal protection rights were violated by a "wealth-based" detention system. That case is ongoing.

The San Francisco public defender's office is part of a legal team representing the plaintiffs in a new federal challenge to the bail system in San Francisco. Dupree v. Hennessy, 18-CV310 (N.D. Cal., filed Jan. 14, 2018).

The Dupree legal team includes a trio of lawyers from Covington & Burling LLP, the law firm where former Obama administration Attorney General Eric H. Holder Jr. is a partner. The complaint also makes 14th Amendment claims.

The lawyers also filed a motion to associate Dupree with Buffin, which U.S. District Judge Yvonne Gonzalez Rogers granted last week. Attorneys with Equal Justice Under Law did not oppose the motion to associate "but do intend to oppose a motion to consolidate," according to a joint filing submitted to the court.

The Humphrey ruling mentions calls from California Chief Justice Tani Cantil-Sakauye to change the cash bail system, and Becerra's refusal to defend current law.

The Department of Justice represented the state at the December hearing, and did make several arguments relating to California law and the need to be able to detain dangerous defendants. The ruling noted the court declined to decide some of the issues raised by government attorneys raised "late in the proceedings."

Kline also wrote. "We hope sensible reform is enacted" and identified SB 10, the California Money Bail Reform Act, as a potential vehicle.

The author of that legislation quickly hailed the ruling.

"Simply put, the current bail system is unconstitutional," Sen. Robert Hertzberg, D-Van Nuys, said in an emailed statement. "I am encouraged that the Court has recognized that the current system is not based on flight risk or risk to public safety, but on how much you can pay."