Court: ‘Hold my beer’

Although its exact origins are lost in the mists of pop culture, the phrase "hold my beer" has a very specific meaning: "I can do it better than you can." And it is typically reserved for undertakings that are, at best, ill-advised.

An example: Washington, D.C. says, "Boy, it's been a scandal-filled year!" Hollywood replies, "Hold my beer."

Does the judicial branch ever tell the political branches of government, "Hold my beer"? The recent efforts to reform California's pretrial bail system vividly illustrate the complexity of this question.

Until Jan. 24, 2018, California had a "money bail" system. Courts could deny bail altogether only for a certain, egregious crimes such as those carrying the death penalty, those involving acts of violence or sexual assault, and those involving threats of great bodily harm. Cal. Const., art. I, Section12; Penal Code Section 1270.5. For all other defendants, courts had two choices: (1) release the defendant on his own recognizance, possibly with additional conditions of release, Cal. Const., art. I, Section 28(f)(3); Penal Code Section 1270, or (2) setting bail, but without any conditions of release, Penal Code Sections 1269, 1269b; In re Webb, 20 Cal. App. 5th 44, 51 (2018). Courts taking the latter route had to follow their county's bail schedule, but could deviate up or down after considering the public's protection, the victim's safety, the seriousness of the charged offense, the defendant's prior record, and the risk of flight. Cal. Const., art. I, Section 28(f)(3); Penal Code Sections 1269c, 1270.1, 1275(a).

This "money bail" system has not been without its critics. Putting to the side people accused of crimes for which bail may denied altogether, these critics argue, "money bail" is a woefully inexact way to serve the twin goals of pretrial detention -- namely, detaining those people accused of crimes who are thought to be dangerous or who pose a flight risk. That is because two people who pose the same danger and same risk of flight (and who therefore have the same bail amount set) will not always be treated the same depending a factor having nothing to do with their danger or flight risk -- namely, whether they can afford to post bail. The wealthier get out; the less wealthy do not.

California's executive and legislative branches are among these critics. As far back as 1979, Gov. Jerry Brown has advocated bail reform. In December 2016, Senate Bill 10 was introduced in the Legislature to do away with the "money bail" system. Even the judicial branch has been an active participant in this policy discussion: In March 2016, Chief Justice Tani Cantil-Sakauye urged bail reform; she thereafter convened a working group to study the issue; and that working group released a 112-page report in October 2017 favoring abolition of the "money bail" system.

Just as these efforts to fashion a political solution to the "money bail" system were gathering steam, the Court of Appeal on Jan. 25 of this year handed down In re Humphrey, 19 Cal. App. 5th 1006 (2018).

Humphrey held that California's "money bail" system was unconstitutional as applied to Kenneth Humphrey. Humphrey was a 63-year-old retiree living in a retirement home who took $7 and a bottle of cologne from another home resident after putting a pillow case over the resident's head. Humphreys was charged with the felonies of first degree robbery, first degree burglary, and inflicting injury on an elderly adult. The bail schedule specified a $600,000 bail, which the trial court reduced to $350,000. Humphrey was indigent and could not afford his bail, and challenged his subsequent pretrial detention as unconstitutional.

The Humphrey court agreed, grounding its ruling in its extrapolation and synthesis of two lines cases of cases. From the equal protection holding of Bearden v. Georgia, 461 U.S. 660 (1983), concluding that convicted defendants cannot be imprisoned for their inability to pay a criminal fine, the court extrapolated the principle that accused defendants should not be imprisoned for their inability to post bail. Humphrey, at 1026-32. From the substantive due process analysis of United States v. Salerno, 481 U.S. 739 (1987), regarding the federal Bail Reform Act of 1984, the court extrapolated the principle that pretrial detention is an infringement of bodily liberty that calls for "heightened scrutiny" under substantive due process, and is permissible only if "no less restrictive condition or combination of conditions can adequately assure the arrestee's appearance in court and/or protect public safety." Humphrey, at 1025-26, 1032-36. Taken together, Humphrey ruled, California courts must fix bail by reference to the bail schedule and the defendant's ability to post bail. Id. at 1037. Except in cases where bail may be denied altogether, courts may order pretrial detention only if (1) a defendant chooses not to post bail, after being shown to possess the wherewithal to do so, or (2) if he cannot afford bail, the court finds by clear and convincing evidence that "no less restrictive nonfinancial conditions of release" are sufficient to assure his appearance or protect the victim and community. Id. at 1026, 1036.

The Humphrey decision will certainly have an impact on the ongoing efforts of the other two branches to reform California's bail system.

Humphrey fundamentally alters the landscape of reform. No longer is the Legislature painting on a blank canvas. Humphrey pencils in some of the contours of the portrait that must emerge and its constitutional basis ostensibly puts some of those lines in permanent ink. Interestingly, one of the co-painters in the political process -- the attorney general -- was also a litigant in Humphrey, and conceded several key points. Humphrey also moves up the time frame. SB 10 contemplated a three-year ramp up time to the new bail system (to take effect in January 2020), but Humphrey's new rules kick in immediately. This puts time pressure on courts to comply with Humphrey, and also puts the broader debate on a much faster track.

Humphrey places unfunded mandates on the judicial system -- most notably, (1) the need for pretrial services staff to investigate each defendant's finances and to offer (and, critically, monitor) released defendants' compliance with nonfinancial conditions of release, and (2) the need for more judges to hear bail hearings, which will now be far more complex than checking the bail schedule. Humphrey was aware that courts do not have the power of the purse and that implementing its mandates requires "greater resources than our trial courts now possess." Humphrey, at p. 1049.

And Humphrey is the type of case that some perceive as speaking to the legitimacy of the courts because it reads broad constitutional mandates (namely, equal protection and substantive due process) to resolve a hitherto unresolved and contentious issue still being debated among prosecutors, criminal defendants and bail bond companies. Sometimes, decisions of this ilk are viewed as undermining the judiciary's legitimacy. Roe v. Wade, 410 U.S. 113 (1973), is viewed by some, such as former Justice Antonin Scalia, as inappropriately "banishing [an] issue from the political forum." Planned Parenthood v. Casey, 505 U.S. 833, 995-96, 1002 (1992) (Scalia, J., dissenting). Other times, however, such decisions are seen to enhance the courts' legitimacy. Brown v. Board of Education, 347 U.S. 483, 490-95 (1954), is hailed for elevating the esteem of the judiciary because it resolved a then-divisive issue on which many state governments lacked the legislative will to act -- namely, is "separate" really equal?

But do Humphrey's effects (and possible effects) cast any light on its purpose or its propriety?

Is Humphrey really an instance of the judicial branch saying, "Hold my beer"?

Or is it an instance of the judicial branch doing precisely what it is constitutionally empowered -- and, more to the point, what it has a constitutional imperative -- to do? Ever since Marbury v. Madison, 5 U.S. 137 (1803), it has been "emphatically the province and duty of the judicial department to say what the law is." And that principle applies with equal force to California judges, who take an oath to uphold and apply the California Constitution. Cal. Const., art. XX, Section 3.

How will Humphrey affect bail reform in the coming months? How will it be regarded a decade from now, when the dust of bail reform has settled? Answering those questions goes far beyond the scope of this article, but a few law professors just asked me to hold their beer.