Liberty is the norm

On March 25, the California Supreme Court handed down its highly anticipated opinion in In re Kenneth Humphrey, 2021 DJDAR 2813, a case which has become emblematic of the growing political and legal opposition to the use of cash bail. As the court noted at the outset, the traditional use of cash bail recognizes the state's compelling interest in detaining defendants pretrial who pose either a risk of flight or a risk to public safety, including a risk to the safety of the victim.

In practice, however, a defendant is often detained pretrial not based on a "careful, individualized determination of the need to protect public safety," but rather on the defendant's financial inability to post the sum called for in the county's uniform bail schedule. The bail schedule, which is set periodically by a committee on a county-by-county basis, sets forth standard bail amounts based on the charged offense, certain factors about the defendant such as prior criminal history or probationary status, and other factors. In practice, many prosecutors request, and judges impose, "schedule" bail for most defendants.

Humphrey, who was joined in his appeal by the attorney general of California, brought a challenge to this system which the court characterized as being "as simple as it is urgent: No person should lose the right to liberty simply because that person can't afford to post bail." The court agreed, offering the following three critical holdings: (1) the "common practice" of conditioning a defendant's pretrial release "solely" on whether he or she can afford bail is unconstitutional. In many cases, other conditions of release such as electronic monitoring or treatment can suffice to protect the public; (2) In cases where a financial condition is necessary, the court must consider the defendant's ability to pay in setting the amount of bail rather than mechanically applying the county's bail schedule; and (3) that in "unusual" cases where no combination of conditions can adequately protect public safety, a court may detain the defendant without bail, but only upon a finding of clear and convincing evidence that no other conditions will suffice.

In Humphrey's case, the trial court imposed a $600,000 cash bail on the charges of residential burglary, inflicting injury on an elderly victim, and misdemeanor theft. Humphrey had requested an own recognizance release, meaning he would be released pretrial without having to post a cash bail. It was also alleged by the prosecution that Humphrey had suffered four prior "strike" convictions within the meaning of the California three strikes law, and four prior serious felony convictions, all for robberies. After Humphrey moved for reconsideration on multiple grounds, the trial court reduced bail to $350,000, but again denied Humphrey's request for an own recognizance release. Because the court failed to consider Humphrey's inability to pay, he was entitled to a new bail hearing.

The Supreme Court's review of the case is notable given its procedural history. In his initial appeal, Humphrey persuaded the Court of Appeal that the trial court's failure to consider his inability to pay was a constitutional violation. The Court of Appeal remanded to the trial court, which deleted granted Humphrey pretrial release conditioned on his participation in drug treatment, his submission to electronic monitoring, and the imposition of a stay away order protecting the victim. No party petitioned for review in the Supreme Court, as the attorney general had by that point conceded that Humphrey's constitutional argument was correct. Several weeks after Humphrey's victory, however, several entities including the San Francisco district attorney's office petitioned the Supreme Court for review to address the constitutionality of cash bail. The Supreme Court stated that it accepted review despite Humphrey no longer being detained or subject to cash bail because the issue was "important," and "capable of repetition yet may evade review." The Supreme Court therefore felt it was important to provide guidance for future cases.

The Supreme Court's holdings were based on a number of interesting sociological findings. The court highlighted studies finding that pretrial detention increases the risk of a defendant losing employment, housing, and child custody. Mass pretrial detention imposes financial burdens on the taxpayers who must pay to house and feed incarcerated defendants. The court cited findings that the entire net growth in the U.S. jail population in the last 20 years is attributable to increasing rates of pretrial, rather than post-trial, incarceration.

The court also noted several disparities between California's treatment of pretrial defendants and that of other states. Defendants in large urban counties in California are detained pretrial at significantly higher rates than those in comparable counties in other states. The court speculated that this disparity may be due to the much higher cash amounts demanded in California. For example, the median cash bail required to secure release in California is $50,000, compared with $10,000 in the rest of the United States.

Finally, the Humphrey decision is significant, beyond its holdings, for the doctrinal hook employed by the California Supreme Court. The court based its analysis in principles of due process and equal protection, focusing on the method by which cash bail is set, i.e. the failure to inquire into the defendant's ability to pay. This analysis was an explicit rejection, as noted in a footnote in the opinion, of the position of several county district attorneys who urged that only the Eighth Amendment's specific bar on excessive bail could form the basis for Humphrey's relief. Eighth Amendment standards are more demanding than the "hybrid" due process/equal protection claim raised by Humphrey. The court explicitly left open the question of whether the bail amounts at issue -- $600,000 or $350,000 -- would have violated the Eighth Amendment in of themselves.

Ultimately, Humphrey stands for the proposition, cited at the end of the Supreme Court's opinion, that "liberty is the norm, and detention prior to trial or without trial is the carefully limited exception." It remains to be seen, once practical realities in busy arraignment courts in large counties set in, whether a careful, individualized determination of ability to pay and non-financial conditions of release does become available to all criminal defendants. At the very least, Humphrey provides the defense bar with a powerful argument in support of their indigent clients' request for pretrial release where prior practice of simply defaulting to the county bail schedule would have typically resulted in pretrial detention. 