Appellate court bail ruling prompts more pretrial releases, but only in some cases

Superior courts across the state are holding what have become known as Humphrey hearings to determine a defendant's financial status and consider bail alternatives in the wake of a 1st District Court of Appeal decision published in February.

A San Francisco County judge released the man, Kenneth Humphrey, whose appeal was granted last week, but the appellate opinion has had varied results across the state. In re Humphrey (2018) 19 Cal. App. 5th 1006.

The impact of the Humphrey hearings largely depend on the district attorney's opposition to pretrial release and the judge's discretion when considering a defendant's flight risk and threat to public safety, according to public defenders.

"We've seen some district attorneys follow Humphrey and are agreeing to release plans which are less restrictive and more reasonable alternatives to bail and certainly we're seeing some district attorneys recognize that," said San Francisco County Public Defender Jeff Adachi. "But we've seen others who have taken the tack that many defendants should be detained without bail."

San Francisco County prosecutors have started to advocate solely for no bail orders when it believes the defendant is a public safety threat or conditional release when it does not believe so, according to San Francisco district attorney's office spokesperson Max Szabo. Monetary bail is only imposed when the defendant poses a flight risk, he added.

"The Humphrey decision came out which [said] that bail should only be set beyond what the defendant can reasonably afford to pay if the court articulates the fact that the individual is either likely to not come back to court and if there are no less restrictive means to ensure that the individual comes back for their court date," Szabo said.

Sonoma County Public Defender Kathleen Pozzi also said the Humphrey decision has had the effect of judges imposing "no bail more often than they ever did before."

"We have the same number of pretrial misdemeanor clients in jail as we did before Humphrey," Pozzi said. "This is very disheartening."

The shift in the office's approach to pretrial release has led to a significant increase in the number of defendants released prior to trial. In February and March 2017, 1,051 defendants were out on conditional release, according to San Francisco Sheriff Vicki Hennessy.

That figure jumped to 1,616, nearly a 50 percent increase, in February and March this year, while the number of total bookings remained relatively similar from the same period last year.

The number of defendants released on the highest level of supervision went up more than 30 percent in March, Hennessy added. She attributed this to the increase in defendants released after felony arrests for crimes such as second degree burglary, child pornography and battery of a peace officer.

But Adachi said the district attorney's change in its approach fails to address what he said is the constitutional right to pretrial release.

More defendants are being held on no bail orders despite more individuals being released prior to trial, Adachi said.

"By taking that position, the district attorney's office, in my opinion, is working to defeat bail reform," he added.

In Santa Clara County, Deputy Public Defender Avi Singh said arraignment attorneys come prepared with information about their client's ability to pay, ties to the community and programs appropriate to help their client in a "Humphrey-tailored request at the beginning of the arraignment."

But Santa Clara County prosecutors have not changed their approach to bail and "haven't meaningfully engaged about what kind of pretrial release conditions fit each person's case," he added.

Although Singh acknowledged more defendants are being let go on conditional release or on their own recognizance, the response has largely depended on the judge hearing the arraignment. Some judges are skeptical about evidence presented by public defenders concerning their clients' ability to pay and set bail as they did before Humphrey.

In Santa Clara County, there has been a 10 percent increase in defendants assigned to the supervised or own-recognizance release programs, according to Director of Pretrial Services Aaron Johnson.

The Los Angeles County Superior Court bench's application of Humphrey has been mixed, according to Interim Public Defender Nicole Davis Tinkham.

"Some courts have embraced the individualized bail assessment mandated by Humphrey and are setting money bail only where no alternative exists, while others continue to condition release on the payment of huge amounts of money without regard for a defendant's particular circumstances," she said.

Although they do not contest bail in specific cases, Los Angeles County public defenders actively monitor bail and seek higher court review when appropriate. But because these motions take time, "many clients held on excessive bail in minor cases plead guilty in order to get out which, ironically, prevents us from seeking review of the court's erroneous bail order in the first place," Tinkham added.