State high court weighs conflicting bail provisions in Constitution

Attorney General Xavier Becerra and attorneys representing a San Francisco man whose pretrial detainment led to a landmark appellate decision in 2018 were peppered with questions from the California Supreme Court Tuesday over two bail provisions in the state Constitution that some legal experts have said are contradictory and have resulted in bail being arbitrarily applied.

The high court's decision in the case could effectively eliminate cash bail schedules statewide, which some lawmakers and former Gov. Jerry Brown, have attempted to do in recent years. After voters decided in the Nov. 3 election to keep the system in place, attention shifted to the high court and this case. In re: Kenneth Humphrey on Habeas Corpus, S247278.

In 2017, prosecutors from the San Francisco County District Attorney's Office accused Kenneth Humphrey, 66, of following his elderly neighbor into his home, throwing his cell phone on the ground, threatening to put a pillowcase over his head and stealing $5 and a bottle of cologne before leaving. Humphrey, a retired shipyard laborer and native of San Francisco who was facing a third criminal strike for the offense, was charged with first-degree robbery, first-degree residential burglary, inflicting injury on an elder adult and misdemeanor theft from an elder adult.

His bail was initially set at $600,000 based on the nature of the crime, the vulnerability of the victim and recommendations from pretrial services that he not be released, according to court documents. That amount was reduced to $350,000 at a bail hearing in which Humphrey was commended for his willingness to participate in drug treatment programs but was still determined to be a public safety threat. His attorneys argued he was too poor to pay the reduced bail amount and subsequently filed a habeas corpus petition challenging his detention and California's bail system as a whole.

The 1st District Court of Appeal in 2018 published what some consider a landmark decision in the case that held judges must consider each individual defendant's ability to pay when setting or reviewing bail instead of simply following county bail schedules for the alleged crime. The unanimous opinion, authored by Justice J. Anthony Kline, also held that trial courts must impose the least restrictive bail conditions possible when making pretrial release decisions.

The attorney general and Humphrey's defense attorneys agreed Tuesday with the premise of that ruling -- that bail should not be set in an amount that prevents indigent defendants like Humphrey from paying it. They also agreed that setting exceedingly high bail amounts does not serve as an incentive for defendants to appear at their next court appearances.

Where the parties disagreed, and where the justices focused the majority of their inquiries, is whether two constitutional provisions relating to bail in California conflict with one another, and if so, how they should be reconciled.

Under Article I, Section 12 of the state Constitution, virtually all criminal defendants are guaranteed an absolute right to bail, aside from a slim list of exceptions that include capital crimes and some violent and sexual felonies.

Deputy Attorney General Joshua A. Klein argued Tuesday that California voters repealed that right when they approved Proposition 9 in 2008. That ballot measure amended Section 28 of Article I, which also relates to the state's cash bail system, to make setting bail a discretionary practice that requires judges to make public and victim safety their primary concern when conducting pretrial analyses.

Justices Mariano-Florentino Cuellar and Goodwin Liu asked Klein what it means for judges to consider public safety when setting bail and what would happen if the government has an interest in setting bail but the defendant cannot pay, as was the case for Humphrey.

"If Section 28 is the governing constitutional principle, then we think the court's path is pretty straightforward," Klein said. "The court doesn't need to worry about any interest in setting bail higher or lower if victim and public safety can't be guaranteed and can't be adequately assured with the defendant's release under any readily available condition."

Cuellar responded, "There's very little that seems straightforward to me about applying Section 28 in this context and figuring out precisely how and when a defendant can be detained without bail, given the oddities of how Section 28 was enacted."

Klein argued that solely relying on Section 12 as the controlling state constitutional provision on bail release and detention would allow for too many opportunities when dangerous criminals can slip through the cracks. He argued voters were aware of this potential discrepancy when they approved Proposition 9.

"Take someone who's arrested for a misdemeanor offense of violating a domestic violence order," Klein said. "That's a misdemeanor offense. It's not covered in the Section 12 conditions that allow a defendant to be detained. However, that's also a defendant who has shown a real unwillingness to obey court orders and the kind of defendant whom the voters may have thought that a judge should be able to look at and say, 'This is not a person who can be safely released.'"

But Alec Karakatsanis of the Civil Rights Corps, who represented Humphrey alongside Daniel S. Volchok of Wilmer Cutler Pickering Hale and Dorr LLP, pushed back on that argument, saying nothing in the measure indicated it would repeal the constitutional right to bail in California.

"Over the last 170 years, California voters have carefully considered and sparingly amended the fundamental right to bail, and what we're now being asked to decide is whether a ballot measure that didn't tell voters that it was going to have any effect on that longstanding right which they have repeatedly affirmed, was in fact getting rid of this longstanding right," said Karakatsanis.

The California District Attorneys Association asked the high court after it granted review of the case to depublish the 1st District's opinion, arguing that the court "upended the California bail system by legislating new bail procedures not contemplated by our statutes or the California Constitution, that conflicts with other case law, and that are impractical to implement."

Los Angeles County District Attorney George Gascon, who brought the charges against Humphrey when he was DA of San Francisco and ordered his deputies not to seek cash bail when he took office in Los Angeles last month, contested that rhetoric in a statement Tuesday.

"Money bail is as unjust as it is unsafe," Gascon said. "It allows wealthy people who are dangerous to purchase their freedom while those without means who pose no risk to public safety languish in jail awaiting trial. There is no evidence that cash bail provides a sufficient incentive necessary for people to return to court. But, there is evidence that the inability for people to obtain money for bail leads to them losing their jobs, homes and access to treatment while separating them from their children."

Cristine DeBerry, a former San Francisco prosecutor and the executive director of the Prosecutors Alliance of California, a smaller organization that aims to challenge the political power of the district attorneys association, said the high court has the potential with the Humphrey case to render the practice unconstitutional.

"The implications for reform and the fair administration of justice cannot be overstated," DeBerry said in a statement.