AG asks state high court to eliminate bail in many cases pending an appeal

Citing the coronavirus, California Attorney General Xavier Becerra asked the state Supreme Court on Wednesday to eliminate money bail unless prosecutors successfully seek a superior court judge's order saying a defendant should remain in custody to protect public safety or victims.

The state high court hasn't set a date to consider an appeal of a 1st District Court of Appeal panel ruling in January 2018 that Kenneth Humphrey was entitled to a new bail hearing on the grounds that the $350,000 bail set for his release on charges of robbery, burglary, inflicting injury on an elder or dependent adult, and theft from a dependent adult was unreasonably high.

The attorney general, who initially defended the bail amount, subsequently switched sides and Deputy Attorney General Joshua A. Klein argued in a letter to the state Supreme Court that the appellate court ruling should have binding effects on trial judges even though the high court has not decided the appeal.

"With respect to federal constitutional requirements, the Court of Appeal's published opinion essentially holds that, where a criminal defendant is otherwise judged suitable for release pending trial, equal protection and due process principles restrict a trial court from causing that defendant to nonetheless be detained through the setting of bail in an unnecessarily high amount that the defendant cannot pay," Klein wrote.

"We view that core constitutional principle to be clear and unassailable. Pretrial detention should depend on an individualized assessment of the need for the person to be detained, rather than on the defendant's financial resources," he said.

Becerra is siding with Humphrey, whose attorneys with the San Francisco County pubic defender's office are still arguing the appeal even though he was released from jail in 2018 after the appellate court ruling.

Klein cites COVID-19 as a new element that justifies disregarding the usual practice of not giving the published Court of Appeal ruling any precedential effect because the state high court has agreed to review the case. The coronavirus has been especially prevalent in California prisons, he argued.

"But the unexpected change in circumstances caused by the unprecedented impacts of the novel coronavirus pandemic warrant reconsideration of that earlier decision," he wrote. In re: Kenneth Humphrey, S247278.

Since the Court of Appeal ruling, the Legislature passed and Gov. Jerry Brown signed, a law to replace money bail with a risk assessment system that focuses more on the danger defendants pose to the community than on their ability to pay.

The law, SB 10, is on hold pending an initiative on the November ballot backed by the bail bonds industry, Proposition 25, that would repeal it.

The state high court posed several questions when accepting review of the case. It asked whether principles of constitutional due process and equal protection require consideration of a criminal defendant's ability to pay when setting bail, whether a trial court may consider public or victim safety, and under what circumstances does the state Constitution permit bail to be denied in noncapital cases.

A final question raises the question of the impact of SB 10 on the issues in the case, assuming voters do not repeal the law in November.