Difficult Humphrey bail findings can be easier to make

In a recent opinion, the appellate court reversed a trial court's no-bail order. (Yedinak v. Superior Court of Riverside County (2023 DJDAR 6231.) Like many post-Humphrey reversals, the trial court failed to articulate necessary findings to justify the decision. (See In re Humphrey (2021) 11 Cal. 5th 135.) Why does this repeatedly happen?

Although Yedinak involved a decision made following a preliminary hearing, most bail decisions are made at arraignment. When custody status is at issue, careful consideration is expected by defendants, victims, and the public. A felony arraignment assignment is not easy. The calendars are heavy, and important decisions are quickly made. The prosecutor may have 30 or more cases to juggle in the courtroom. Public defenders in many counties meet clients minutes beforehand with no time to explore the ability to pay bail or custody alternatives.

In deciding whether to set bail, how high to set it, or to release a defendant on their own recognizance with or without conditions, a judge must consider multiple factors. Does the person present a flight risk or a danger to the public? Will nonfinancial conditions of release reasonably ensure return to court and provide protection? What are the least restrictive nonfinancial conditions to consider? Will ordering affordable bail be adequate? Is there clear and convincing evidence that there is no combination of conditions to satisfy these goals? If so, denial of bail may be appropriate. These considerations are part of an evaluative process that must be on the record and in the minutes to permit meaningful review.

Counsel should address these factors. I presided over felony arraignment court throughout 2022, after Humphrey was final. Yet, prosecutors often skipped the steps of addressing potential OR release, conditions of release, or affordable bail and jumped straight to seeking increased bail beyond the defendant's means. In essence, they sought the equivalent of a no-bail hold without articulating the factors supporting the clear and convincing evidence standard mandated by Humphrey. The defense often asserted their client had no ability to pay any bail and must be released because requiring bail was the equivalent of a no-bail hold. Release conditions were sometimes suggested, but there was little time for counsel to investigate options. Some counties arrange for earlier access to the client, allowing the defense to engage in better assessment and present realistic release conditions to the court, but these programs are not widespread.

Given incomplete information, arraignment judges try to make the best decisions, but don't always have the proper tools. I found that using a one-page checklist helped to identify the factors to consider. For example, flight risk factors to evaluate may include failures to appear, lack of community ties, potential penalties, prior unwillingness to follow court orders, or outstanding warrants. Typical factors pertaining to dangerousness can be listed for consideration. The specific legal findings necessary to order non-financial or financial conditions should be included on the form, as well as findings necessary to a bail denial. The judge can then decide whether any of the potential findings apply and check them off.

Our court created a checklist tool available to all judges. Counsel advocated well when they specifically addressed the checklist or submitted their own proposed checklist identifying applicable factors and release conditions. Checking boxes based on findings made in open court and incorporating the checklist into the minutes allowed the findings to be reflected clearly in the file for the next judge to see, or for appellate review. The list helps judges to avoid forgetting factors or failing to articulate reasons.

Bail rulings are often difficult and impact many lives, but using a checklist as a guide makes them easier to make correctly and promotes a better record.