The Eighth Amendment was adopted in 1791 as part of the Bill of Rights. It protects against excessive bail, fines, and cruel and unusual punishments. Bail is considered excessive when it is set at a higher amount than is reasonably calculated to ensure the government’s interest.

Supreme Court of Ohio Upholds Reasonable Bail Decision

On January 4, 2022, the Supreme Court of Ohio wasted no time in the new year in entering a historic decision. Over the past few years, criminal justice reform has been on the forefront of the political arena, news media, and equal rights activists. A substantial issue in criminal justice reform is the attempt to reform or outright eliminate the cash bail system. So often, minorities and lower-class defendants are given significant cash bail and afforded no reasonable way to post bail prior to trial. One of the foundational rights in the United States Constitution and Ohio Constitution is the assumption that everyone is presumed innocent until proven guilty beyond a reasonable doubt. However, when an individual charged with a crime and given a $500,000 or even $1,000,000 bail, it is hard to imagine how that individual feels they have been presumed innocent.

The Supreme Court of Ohio’s decision in DuBose v. McGuffey , may have changed the way the court system examines the decision of bail. The case stems out of a July 18, 2020 shooting in Hamilton County, Ohio were Shawn Green was killed in an alleged robbery. DuBose and a codefendant, Jamie Shelton, were charged for the death of Mr. Green. At the bail hearing, DuBose’s attorney asked for a “reasonable bail,” based off DuBose’s limited financial means, ties to the community, and a lack of criminal record. The State of Ohio asked for a bond of $1,500,000. The Court sided with the State and set bail at $750,000 for the murder charge and a separate $750,000 for the aggravated-robbery charge.

On January 26, 2021, DuBose’s attorney filed a Motion for Bond Reduction in the Hamilton County Court of Common Pleas. DuBose emphasized that he had limited resources, no felony record, and ties to the community. The trial court agreed with DuBose and Judge Wende C. Cross reduced bond to $500,000. The next day, however, the trial court restored the original bail amount as the court had failed to notify the alleged victim’s family as required by Marsy’s Law . Upon re-hearing and input from the alleged victim’s family, the trial court denied DuBose’s motion to reduce bail and all subsequent attempts to reduce his bail were denied by the trial court. Mr. DuBose’s bail remained at $1,500,000.

On September 22, 2021, DuBose filed a petition for a writ of habeas corpus in the First District Court of Appeals. The court of appeals held that bail in the amount of $1,500,000 was excessive because it did not take into account the defendant’s financial resources, as required by Ohio Criminal Rule 46(C)(4).  In the view of the court of appeals, “Dubose’s high bail was effectively a denial of bail, without the trial judge making any of the required statutory findings” to hold a defendant without bail.  The court of appeals therefore reduced DuBose’s bail to $500,000.  The state of Ohio appealed.

The Supreme Court of Ohio emphasized that the sole purpose of bail is to ensure a person’s attendance in court.  Both the United States Constitution and the Ohio Constitution prohibit excessive bail (See 8th Amendment to the U.S. Constitution and Article I, Section 9 of the Ohio Constitution). The Court held that “a bail amount that is higher than an amount reasonably calculated to ensure the accused presence in court is ‘excessive.’”  Due to this reasoning, the Supreme Court held that the State’s appeal had no merit.

The Supreme Court held that when a trial court is determining an individual’s bail, the court must consider five factors per Ohio Criminal Rule 46: 1. The nature and circumstances of the crime charged and whether the crime involved a weapon; 2. The weight of the evidence against the defendant; 3. The confirmation of the defendant’s identity; 4. The defendant’s family ties, employment, financial resources, character, record of convictions; and 5. Whether the defendant was on parole or subject to another form of court control at the time of the alleged offense.

In their agreement with the court of appeals, the Supreme Court held that when a trial court balances the above factors, the court must set bail on the least restrictive means possible that will reasonably ensure an individual’s appearance in court.   The Court emphasized the Ohio Criminal Rule’s revision in July of 2020. That Rule’s revision states that the financial conditions of bail must relate to the defendant’s risk of non-appearance in court, the seriousness of the offense, and the individual’s prior record.  This means that public safety and an alleged victim or their family’s statement are not a consideration when a court determines the financial considerations of bail.  The Court focused on Criminal Rule 46(B)(2) and the fact that any public-safety concerns should be addressed by imposing nonfinancial conditions of bail. Consequently, any financial conditions placed upon an individual charged with a crime must be reasonable.

This decision by the Supreme Court of Ohio is monumental when examining bail reform. So often, a bail amount is set far-beyond the limits of what any criminal defendant could pay. This makes society question whether individuals charged with crimes truly are “presumed innocent.” Bail decisions are often fueled by emotion and statements from individuals who have just been the victim of an alleged crime. The Supreme Court makes clear that when imposing financial conditions of bail, this line of reasoning is inappropriate and so often leads to excessive, unreasonable bails.

We here at Rittgers Rittgers & Nakajima always strive to do everything we can for our clients. From the very start of a case and trying to get you or your loved one out on bond, to working towards a resolution, we never standby and wait to take action. Unlike other law firms, our criminal team does not sit back and wait for trial or for a resolution that the state suggests. We are aggressive and take action to ensure that our clients are set up down the best possible course of action. source

More on Bail:

WHAT IS A HUMPHREY HEARING RELATED TO A BAIL?

Judge cites recent Ohio SUPCO decision in setting murder case bond

YOUNGSTOWN, Ohio (WKBN) — Citing a recent Ohio Supreme Court decision on bond, a Mahoning County Common Pleas Court judge Friday reduced bond for a man accused of shooting four people at a West Side apartment complex, killing one of them.

Judge John Durkin said that the $800,000 bond given to Marquez Thomas, 24, of North Glenellen Avenue, is unconstitutional under both the state and United States constitutions because he is effectively being detained without bond because he can not afford to post it.

Bond for Thomas was set at $150,000 with electronic house arrest should he post it and an order barring him from having any contact with the victims in the case or their families.

The case is believed to be the first in Mahoning County that cited the Supreme Court decision, Dubose v. McGuffey.

Thomas is accused of a shooting about 1:15 a.m. Dec. 27 in the parking lot of a Tyrell Avenue apartment complex that killed Joseph Addison, 42, and wounded three others. He faces a charge of aggravated murder and three counts of attempted murder.

Police are also seeking his sister, C’Mone Thomas, 22, who is also charged with aggravated murder.

Judge Durkin said he based his decision on a 4-3 ruling in January in the state supreme court that said bond is a way to ensure that someone appears for court and excessive bonds are unconstitutional.

The supreme court decision stemmed from a suspect in a 2020 Hamilton County murder, Justin Dubose, 26, who appealed his $1.5 million bond, calling it unreasonable and unconstitutional. The Su[preme Court upheld a First District Court Of Appeals ruling that reduced the suspect’s bond from $1.5 million to $500,000.

The panel pointed to a clause in the state’s criminal code that said judges should use the least restrictive conditions to make sure a defendant appears at future hearings in court.

Dubose had claimed that the bond was unconstitutional because he had limited resources, had no prior felony criminal record and also had ties to the community.

Maro said her client is indigent and she was appointed by the court to represent him, which means he does not even have money to pay for an attorney, let alone a high bond.

Thomas has no prior felony criminal record and in his two misdemeanor cases, he never missed a court date, Maro said. Maro said he has lived in the area his entire life, has family in the area and his girlfriend and mother check in with her regularly on the case and he was working as a welder before he was arrested.

Anticipating arguments from Assistant Prosecutor Nick Brevetta that her client was guilty of the crime, Maro said that has to be proven by a jury.

Brevetta said that under the Ohio Revised Code, a judge is allowed to take into account the safety of the community when determining what the amount of bond should be. In the Thomas case, Brevetta said Thomas is seen on video committing the crimes he is charged with and he had access to a firearm.

Brevetta said that judges can also take into account the weight of the evidence when setting bond. Thomas was seen on video carrying out the shootings and that evidence is compelling, Brevetta said.

“I could ask for better evidence, but that would be a confession,” Brevetta said.

Judge Durkin said bond is to ensure a defendant appears for court hearings, and that the supreme court decision emphasized that aspect of bond.

The Supreme Court also said that public safety is not a “consideration with respect to the financial conditions of bail” but the court said other restrictions that are not financial — such as banning a defendant from contact with certain people or travel — can be utilized to ensure public safety.

The judge said the decision “makes it clear that an $800,000 bond is in effect an order of detention” and unconstitutional under the state and United States constitutions.

DuBose v. McGuffey – Supreme Court of Ohio Upholds Reasonable Bail Decision

In recent years, a debate has emerged related to the appropriate role of bail in the American criminal justice system. A coalition of libertarian and progressive advocates has advocated for bail reform in order to reduce the number of Americans who are incarcerated, including those who are awaiting trial on criminal charges.[1] On the other side, certain advocates, including many traditional “law and order” conservatives, argue that bail reform is at least partially to blame for the recent spike in violent crime in America because individuals who have already been charged with crimes and are likely threats to public safety are being left on the streets.[2]

This simmering debate boiled over in Ohio because of a recent Ohio Supreme Court decision and a proposed amendment to the Ohio Constitution offered in response to the court’s decision.[3] The debate revolves around whether trial courts should be permitted to consider public safety concerns when setting bail amounts.

In DuBose v. McGuffey, the Ohio Supreme Court upheld a decision by an intermediate state appellate court to reduce the bail of a criminal defendant—who was charged with multiple offenses, including murder—from $1,500,000 to $500,000.[4] The 4-3 decision resulted in five different opinions—the majority opinion, three dissenting opinions, and an opinion from a justice who joined the majority but wrote separately to dispute some of the dissenters’ claims.

Defendant Justin DuBose was charged with two counts of murder, one count of aggravated robbery, and one count of aggravated burglary. The Hamilton County Municipal Court initially set bail at $1,500,000 for DuBose.[5] DuBose then filed a motion for bail reduction with the Hamilton County Court of Common Pleas, which, following a hearing, reduced the bail amount to $500,000.[6] The next day, however, the trial court restored the original bail amount because the victim’s family had not been notified of the bail hearing as required by the Ohio Constitution.[7]

After the victim’s family was notified, the trial court held multiple hearings on DuBose’s motions to reduce bail. At one hearing, the victim’s grandmother testified that she and the victim’s mother would be “scared to death if [DuBose] gets out” and that they “don’t feel safe with him out on bond.” Following the hearings, the trial court denied the motions to reduce bail and left the amount at $1,500,000.[8]

DuBose then filed a petition for a writ of habeas corpus with the Court of Appeals for the First Appellate District of Ohio. The appellate court granted the writ, reviewed the case de novo, held that the $1,500,000 bail was excessive, and reduced it to $500,000.[9]

The state then appealed to the Ohio Supreme Court presenting two propositions of law: first, that the appellate court erred when it reviewed the trial court’s bail decision de novo, rather than under an abuse of discretion standard; and second, that the appellate court erred by discounting the statement of the victim’s grandmother regarding her and her daughter’s concerns for their personal safety.[10] A majority of the Ohio Supreme Court held that “whether a particular bail determination is unconstitutionally excessive is a question of law appropriate for de novo review”[11] and, accordingly, rejected the state’s first proposition of law.[12]

In considering the state’s second proposition of law, the majority reviewed sections of the Ohio Constitution providing for bail and noted that excessive bail is prohibited.[13] The Ohio Constitution states:

All persons shall be bailable by sufficient sureties, except for a person who is charged with a capital offense where the proof is evident or the presumption great, and except for a person who is charged with a felony where the proof is evident or the presumption great and where the person poses a substantial risk of serious physical harm to any person or to the community. Where a person is charged with any offense for which the person may be incarcerated, the court may determine at any time the type, amount, and conditions of bail. Excessive bail shall not be required . . . . The General Assembly shall fix by law standards to determine whether a person who is charged with a felony where the proof is evident or the presumption great poses a substantial risk of serious physical harm to any person or to the community.[14]

The majority noted that if the state believed that DuBose posed a danger to the community and should be held without possibility of release, the state should have complied with procedures set forth in a statute, which include convincing the trial judge that

the proof is evident or the presumption great that the accused committed the serious offense with which the accused is charged, . . . that the accused poses a substantial risk of serious physical harm to any person or to the community, and . . . no release conditions will reasonably assure the safety of that person and the community.[15]

The DuBose majority further noted that the appellate court found it significant that the state did not pursue having the trial court order DuBose to be held without possibility of release based on public safety concerns, but instead sought to have bail set at $1,500,000.[16] The majority pointed out that the Ohio Rules of Criminal Procedure provide that:

[T]he court shall release the defendant on the least restrictive conditions that, in the discretion of the court, will reasonably assure the defendant’s appearance in court, the protection or safety of any person or the community, and that the defendant will not obstruct the criminal justice process. If the court orders financial conditions of release, those financial conditions shall be related to the defendant’s risk of non-appearance, the seriousness of the offense, and the previous criminal record of the defendant.[17]

The majority found that, based on the rule outlined above, “public safety is not a consideration with respect to financial conditions of bail” and, as such, the appellate court did not “wrongly disregard the grandmother’s statement” when it determined that $1,500,000 was excessive based on DuBose’s financial situation. Accordingly, the majority concluded that the state’s second proposition of law had no merit.[18]

Justices Patrick DeWine, Pat Fischer, and Sharon Kennedy each separately dissented from the majority’s decision. All three argued that the majority was wrong to uphold the appellate court’s approach to reviewing the bail determination de novo. The dissenting justices noted that the Ohio Constitution and the Ohio Rules of Criminal Procedure vest the trial court with broad discretion in setting bail and that such determinations should not be disturbed absent an abuse of that discretion.[19]

Justice DeWine pointed out in his dissenting opinion that there are good reasons that “[o]ur Constitution and [Rules of Criminal Procedure] entrust bail decisions to trial judges.” He noted that the “typical trial judge has extensive experience in setting the conditions of release, making such decisions on a regular, often daily, basis.”[20] According to Justice DeWine, trial judges are best able to view the witnesses and weigh the credibility of their testimony. Moreover, Justice DeWine noted that trial judges are “far better equipped than appellate courts to actively monitor a defendant’s compliance with the terms of bail” and can “more quickly modify the conditions of release based on changed circumstances.”[21]

All three dissenters also expressed that the trial court acted within its discretion when it considered public safety concerns when setting the bail amount.[22] Justice DeWine stated that the majority’s holding that public safety may not be considered when setting bail “flies in the face” of court precedent and the Ohio Rules of Criminal Procedure.[23] DeWine emphasized his serious concerns with the majority opinion by saying “Make no mistake: what the majority does today will make Ohio communities less safe.”[24] He summed up his overall concerns with the decision:

In refusing to apply any deference to bail decisions made by trial judges, in refusing to ensure victims’ rights are protected, and in prohibiting a court from even considering public safety in making bail decisions, the majority departs from our rules, our precedent, and our Constitution. And, in doing so, it undermines the safety of our communities.[25]

Justice Michael Donnelly wrote a separate opinion concurring with the majority to specifically take issue with some of the claims made by the dissenters. He wrote:

Having spent 14 years as a trial-court judge and having set thousands of bonds, I am appalled by the brazen accusations made in some of the dissenting opinions that the justices joining the majority opinion are making Ohio less safe and disrespecting victims simply by telling our courts that they must follow the rules if they want to hold defendants in custody prior to trial without possibility of release before the trial.[26]

While the DuBose case certainly pushed the role of bail to the forefront of the debate over criminal justice reform in Ohio, it might not be the final word on the issue.[27] First, in response to the DuBose decision, the Ohio General Assembly passed a proposed amendment to the Ohio Constitution by the required three-fifths majority of each House, largely along partisan lines, with the Republicans voting in favor and the Democrats against.[28] The proposed amendment will appear on the general election statewide ballot in November and will go into effect if a majority of Ohio voters vote in favor of it.[29]  The proposed amendment would add the following provision to the Ohio Constitution:

When determining the amount of bail, the court shall consider public safety, including the seriousness of the offense, and a person’s criminal record, the likelihood a person will return to court, and any other factor the general assembly may prescribe.[30]

Additionally, Chief Justice Maureen O’Connor, who was in the majority in the DuBose case, is retiring from the court at the end of the year.[31] Two sitting justices—Justice Jennifer Brunner, who joined the majority in DuBose, and Justice Kennedy, who dissented—are running to succeed O’Connor as chief justice.[32] Regardless of who wins, a vacancy will be created which will be filled by the governor.[33] Moreover, both of the other dissenters, Justices DeWine and Fischer, are up for reelection in November.[34]

With the proposed constitutional amendment and three seats on the Ohio Supreme Court all being on the ballot in November, the issue of bail reform will likely continue to be a focus of debate in the Buckeye State for the foreseeable future.

[1]  See Micah Derry & Claire Chevrier, Ohioans Overwhelmingly Support Criminal Justice and Bail Reforms, cleveland.com, March 24, 2021,  https://www.cleveland.com/opinion/2021/03/ohioans-overwhelmingly-support-criminal-justice-and-bail-reforms-micah-derry-and-claire-chevrier.html.
[2] See William J. Bratton & Rafael A. Mangual, ‘Bail Reform’ is Killing New Yorkers as Eric Adams Pushes for Change, Wall Street J., Feb. 16, 2022,https://www.wsj.com/articles/bail-reform-killing-new-yorkers-violence-convictions-criminals-judges-court-order-release-murder-stabbing-assault-violent-crime-11645029571; see also Paul Cassell & Richard Fowles, Does Bail Reform Increase Crime? An Empirical Assessment of the Public Safety Implications of Bail Reform in Cook County, Illinois, S.J. Quinney College of Law research paper No. 349 (2020), available at https://dc.law.utah.edu/scholarship/194.
[3] See David Forster, Ohio Supreme Court Bail Ruling Sparks Debate Over Public Safety and Penalizing the Poor, WOUB Public Media, Apr. 15, 2022, https://woub.org/2022/04/15/ohio-supreme-court-bail-ruling-sparks-debate-over-public-safety-and-penalizing-the-poor/.
[4] DuBose v. McGuffey, 2022-Ohio-8, slip op., available at https://www.supremecourt.ohio.gov/rod/docs/pdf/0/2022/2022-Ohio-8.pdf.
[5] Id. at 2.
[6] Id. at 2-3.
[7] Id. at 3.
[8] Id.
[9] DuBose v. McGuffey, 2021-Ohio-3815 (Ohio Ct. App.), https://www.supremecourt.ohio.gov/rod/docs/pdf/1/2021/2021-Ohio-3815.pdf.
[10] DuBose, 2022-Ohio-8, slip op. at 5.
[11] Id. at 6.
[12] Id. at 7.
[13] Id. at 4-5.
[14] Ohio Const. art. I, sec. 9.
[15] DuBose, 2022-Ohio-8, slip op. at 8 (quoting Ohio Revised Code, Sec. 2937.222(B)).
[16] Id. at 8.
[17] Id at 8-9 (quoting Ohio Crim. R. 46(B)).
[18] DuBose, 2022-Ohio-8, slip op. at 9-10.
[19] Id. at 18-19 (Kennedy, J., dissenting), at 27 (Fischer, J., dissenting), at 31-34 (DeWine, J., dissenting).
[20]
[21] Id. at 33-34 (DeWine, J., dissenting).
[22] Id. at 22 (Kennedy, J., dissenting), at 27-28 (Fischer, J., dissenting), at 35-38 (DeWine, J., dissenting).
[23] Id. at 35 (DeWine, J., dissenting).
[24] Id. at 28.
[25] Id. at 39.
[26] Id. at 15 (Donnelly, J., concurring).
[27] See Forster, supra note 3.
[28] See Jim Gaines, Bail Change Will Be on Fall Ballot, Dayton Daily News, May 31, 2022,  https://www.daytondailynews.com/local/bail-change-will-be-on-fall-ballot/FLUXHSFG5VAPVLGO5HJJ2ISDPA/.
[29] Ohio Const. art. XVI, sec. 01.
[30] Substitute House Joint Resolution 2 (134th Ohio General Assembly (2021-22)),  https://search-prod.lis.state.oh.us/solarapi/v1/general_assembly_134/resolutions/hjr2/EN/04/hjr2_04_EN?format=pdf.
[31] See Ohio Supreme Court Chief Justice Maureen O’Connor Biography, https://www.supremecourt.ohio.gov/SCO/justices/oconnor/default.aspx.
See also Marc Kovac, COVID, Sentencing Reform Among Focuses for Final Years of Chief Justice Maureen O’Connor’s Term, Columbus Dispatch, Dec. 29, 2020), https://www.dispatch.com/story/news/politics/state/2020/12/29/oconnor-heading-into-final-2-years-supreme-court-chief-justice/4006669001/.
[32] See Brunner, Kennedy to Face Off in Ohio Chief Justice Race, Mount Vernon News, May 6, 2022, https://mountvernonnews.com/stories/624891952-brunner-kennedy-to-face-off-in-ohio-chief-justice-race. Justice Brunner has listed “Bail Reform” as part of her “Campaign Platform for Chief Justice of the Ohio Supreme Court” on her campaign website. See https://www.justicebrunner.com/my-platform.
[33] Ohio Const. art. IV, sec. 13; see also Andy Chow, DeWine Supports Constitutional Amendment to Change Rules for Setting Bail, WKSU, Apr. 15, 2022,  https://www.wksu.org/government-politics/2022-04-15/dewine-supports-constitutional-amendment-to-change-rules-for-setting-bail.
[34] See Karen Kasler, Ohio Supreme Court Justices, Chief Justice Races Set for November Election, WKSU, May 3, 2022,  https://www.wksu.org/government-politics/2022-05-03/ohio-supreme-court-justices-chief-justice-races-set-for-november-election.

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Amdt8.2.2 Modern Doctrine on Bail

Eighth Amendment:

Excessive bail shall not be required, nor excessive fines imposed, nor cruel and unusual punishments inflicted.

Bail, which is basic to our system of law,¹ is excessive in violation of the Eighth Amendment when it is set at a figure higher than an amount reasonably calculated to ensure the asserted governmental interest.² The issue of bail is only implicated when there is a direct government restraint on personal liberty, be it in a criminal case or a civil deportation proceeding.³ In Stack v. Boyle, the Supreme Court found a $50,000 bail to be excessive, given the defendants’ limited financial resources and the lack of evidence that they were a flight risk.⁴ The Court determined that the fixing of bail for any individual defendant must be based upon standards relevant to the purpose of assuring the presence of that defendant, and [u]nless this right to bail before trial is preserved, the presumption of innocence . . . would lose its meaning.⁵

In United States v. Salerno, the Court upheld the Bail Reform Act of 1984 provisions regarding preventative detention against facial challenge under the Eighth Amendment. The function of bail, the Court explained, is limited neither to preventing flight of the defendant prior to trial nor to safeguarding a court’s role in adjudicating guilt or innocence.⁶ The Court held that Congress did not violate the Excessive Bail Clause by restricting bail eligibility for compelling interests such as public safety, and observed that the Clause says nothing about whether bail shall be available at all in a particular situation.⁷ The Court rejected the proposition that the Eighth Amendment categorically prohibits the government from pursuing other admittedly compelling interests through regulation of pretrial release.⁸ The Court explained that [t]he only arguable substantive limitation of the Bail Clause is that the government’s proposed conditions of release or detention not be ‘excessive’ in light of the perceived evil.⁹ The Court determined that detention prior to trial of arrestees charged with serious felonies who are found after an adversary hearing to pose a threat to the safety of individuals or to the community which no condition of release can dispel satisfies this requirement.¹⁰

The Court further explained in Salerno that if the only asserted interest is to guarantee that the accused will stand trial and submit to sentence if found guilty, then bail must be set by a court at a sum designed to ensure that goal, and no more.¹¹ To challenge bail as excessive, the Court held that an individual must move for a reduction, and, if that motion is denied, appeal to the Court of Appeals, and, if unsuccessful, appeal to the Supreme Court Justice sitting for that circuit.¹² The Amendment is apparently inapplicable to postconviction release pending appeal, but the practice has apparently been to grant such releases.¹³

There is, however, no absolute right to bail in all cases.¹⁴ In a civil case, the Court held that the prohibition against excessive bail does not compel the allowance of bail in deportation cases and that the very language of the Amendment fails to say all arrests must be bailable.¹⁵ Moreover, although the Court has not explicitly stated such, the Court has assumed that the Eight Amendment’s proscription of excessive bail . . . [applies] to the States through the Fourteenth Amendment.¹⁶

Footnotes

1.  Jump to essay-1Schilb v. Kuebel, 404 U.S. 357, 484 (1971).
2.  Jump to essay-2Stack v. Boyle, 342 U.S. 1, 5 (1951). The Court explained that the fixing of bail for any individual defendant must be based upon standards relevant to the purpose of assuring the presence of that defendant. Id.
3.  Jump to essay-3Browning-Ferris Indus. of Vermont, Inc. v. Kelco Disposal, Inc., 492 U.S. 257, 263 n.3 (1989) (explaining that the Bail Clause guards against the potential for governmental abuse).
4.  Jump to essay-4Id. at 6–7.
5.  Jump to essay-5Id. at 4–5.
6.  Jump to essay-6United States v. Salerno, 481 U.S. 739, 754–55 (1987).
7.  Jump to essay-7Id. at 752–53.
8.  Jump to essay-8481 U.S. at 753.
9.  Jump to essay-9481 U.S. at 754.
10.  Jump to essay-10481 U.S. at 755. The Court also ruled that there was no violation of due process, the governmental objective being legitimate and there being a number of procedural safeguards (detention applies only to serious crimes, the arrestee is entitled to a prompt hearing, the length of detention is limited, and detainees must be housed apart from criminals). Id.
11.  Jump to essay-11Salerno, 481 U.S. at 754.
12.  Jump to essay-12Boyle, 342 U.S. at 6–7.
13.  Jump to essay-13Hudson v. Parker, 156 U.S. 277 (1895).
14.  Jump to essay-14Id. at 753.
15.  Jump to essay-15Carlson v. Landon, 342 U.S. 524, 544–46 (1952) (explaining that the Eighth Amendment has not prevented Congress from defining the classes of cases in which bail shall be allowed in this country and in criminal cases bail is not compulsory where the punishment may be death).
16.  Jump to essay-16Schilb v. Kuebel, 404 U.S. 357, 484 (1971); see Hall v. Florida, 572 U.S. 701, 707 (2014) (The Eighth Amendment provides that ‘excessive bail shall be required, nor excessive fines imposed, nor cruel and unusual punishment inflicted.’ The Fourteenth Amendment applies those restrictions to the States.); Kennedy v. Louisiana, 554 U.S. 407, 419 (2008) (The Eighth Amendment, applicable to the States through the Fourteenth Amendment, provides that ‘[e]xcessive bail shall not be required, nor excessive fines imposed, nor cruel and unusual punishments inflicted.’); see also Schall v. Martin, 467 U.S. 253 (1984) (upholding under the Due Process Clause of the Fourteenth Amendment a state statute providing for preventive detention of juveniles).

HUMPHREY HEARING AND DEFENDANT’S FINANCIAL INABILITY TO PAY BAIL

In March 2021, the California Supreme Court finally gave their opinion In re Kenneth Humphrey, which had become a huge political and legal issue over the use of cash bail.

The court recognized that the traditional use of cash bail represents the state’s primary interest in detaining a defendant who could be a flight risk, danger to the community, including the risk of safety to the victim.

In reality, however, defendants are frequently detained before a trial not based on an individual’s risk to public safety or fear of fleeing, but on their financial inability to post bail.

In other words, they simply can’t afford to post the amount listed on the bail schedule.

The court determined that defendants can’t be incarcerated solely because they are unable to afford bail. Further, there must be clear and convincing evidence to show that detention is necessary to protect public safety.

Every county in the state of California has a uniform bail schedule which is set periodically by a committee. The amount of bail is based on several factors:

• the type of crime charged,
• defendant’s criminal history or probationary status, and
• other factors.

Again, in reality, many prosecutors will request, and judges impose, “schedule” bail for most defendants.

The court’s ruling will be discussed in greater detail below by our Los Angeles criminal defense attorneys.

CHALLENGING THE BAIL SYSTEM IN CALIFORNIA

Kenneth Humphrey was joined in his appeal by the Attorney General of California, Xavier Bacerra, who brought a challenge to this system which he classified as an urgent matter.

In the appeal, he stated that nobody should lose the right to freedom simply because they “can’t afford to post bail.” The Supreme Court agreed with the argument and made some crucial decisions:

• It is unconstitutional to condition a defendant’s pretrial release “solely” on whether they can afford to pay bail, as other conditions of release, like electronic monitoring, is sufficient to protect the public’s safety;
• In cases where a financial condition is relevant, the court has to take into consideration the defendant’s ability to pay when they set the amount of bail rather than just simply applying the county’s bail schedule; and
• In unique cases where no amount of conditions can properly protect public safety, the court can detain a defendant without bail, but only after a finding of clear and convincing evidence that no other conditions are sufficient.

DETAILS OF THE HUMPHREY CASE

In the Humphrey case, he was arrested on May 23, 2017, which was just another arrest as part of a life-long drug and alcohol addiction.

The trial court gave him a $600,000 cash bail on the charges of residential burglary, causing injury on an elderly victim, and misdemeanor theft.

At the court hearing, his public defender did request his own recognizance release which means he would be released pretrial without having to post cash bail. This O.R. release request was made due to his age and other factors.

The prosecutor alleged that Humphrey had four prior “strike” convictions under the definition of the California three-strikes law, and four prior serious felony robbery convictions.

After Humphrey’s defense lawyer moved for reconsideration of bail on several grounds, the trial court judge did reduce the bail to $350,000, but again denied the request for an own recognizance release.

Because the court failed to consider Humphrey’s financial inability to pay, he was entitled to a new bail hearing.

SUPREME COURT REVIEW OF HUMPHREY CASE

The California Supreme Court review of the case is noteworthy given its procedural history.

In the initial appeal, Humphrey did convince the Court of Appeals that the trial court’s failure to consider his financial inability to pay was a violation of his constitutional rights.

The Court of Appeals remanded the case to the trial court, which granted his pretrial release conditioned for:

• participating in drug treatment
• submitting to electronic monitoring, and
• imposing a stay-away order protecting the victim.

Weeks after Humphrey’s court victory, several entities which included the San Francisco District Attorney’s office submitted a petition to the Supreme Court for review to address the constitutionality of cash bail.

They decided to accept the review even though Humphrey was no longer being detained or subjected to cash bail because the issue was “important,” and “capable of repetition.”

Put simply, the California Supreme Court believed it was as important to review and provide some guidance for future cases.

SUPREME COURT’S FINDING ON PRETRIAL DETENTION

The Supreme Court’s holdings were based on several interesting sociological findings.  They highlighted some studies that found that pretrial detention increases:

• the risk of a defendant losing their employment,
• loss of housing, and
• losing child custody.

Further, they found that mass pretrial detention imposes financial burdens on California taxpayers who are forced to pay to house and feed incarcerated defendants.

The court also noted findings that the entire net growth in the U.S. jail population in the last twenty years is partly responsible for increasing rates of pretrial, rather than post-trial, incarceration.

Also, the court made note of the disparities between California’s treatment of pretrial defendants compared to other states.

For example, defendants in large California urban counties are detained pretrial at much higher rates than those in comparable counties in other states.

They speculated the disparity could be due to the much higher cash amounts that are ordered by the courts.

For example, the median cash bail that is required to obtain a release in California is $50,000, while only $10,000 in the rest of the United States.

DUE PROCESS AND EQUAL PROTECTION

The Humphrey decision by the California Supreme Court is significant, beyond its holdings. The court based its analysis on principles of due process and equal protection.

Their primary focus was on the method by which cash bail is set and the failure by the courts to even inquire about a defendant’s financial ability to pay.

Their final analysis was a rejection of the position of numerous county District Attorneys who argued that only the Eighth Amendment’s ban on excessive bail could form the basis for Humphrey’s relief.

The court did, however, leave open a big question of whether the bail amounts at issue, $600,000 vs $350,000, would have violated the Eighth Amendment.

The Supreme Court cited at the end of their opinion that “liberty is the norm, and detention before trial or without trial is the carefully limited exception.”

At this point, however, it remains to be seen in the reality of very busy criminal arraignment courts in large California cities whether a careful individual review of financial ability to pay becomes available to all criminal defendants.

Either way, the Humphrey case provides the defense team with a powerful tool to support their indigent clients’ request for pretrial release where the old practice of defaulting to the county bail schedule would have typically resulted in pretrial detention.

More on Bail:

DuBose v. McGuffey – Supreme Court of Ohio Upholds Reasonable Bail Decision

What is a “Humphrey Hearing”?

In the California criminal justice system, a “Humphrey hearing” is a court hearing held soon after a person is arrested for a crime. A judge holds the hearing to ensure that you are not kept in custody following an arrest because you do not have the financial resources to post bail for release.

An arrestee can only be kept in custody without bail if there is clear and convincing evidence that detention is necessary to protect public safety.

Note that bail is money that you must pay to the court so that you can get released from jail. A bail system is used as a way to help ensure that you will show up for future court dates.

1. Is a Humphrey hearing a type of court appearance?

Yes. A judge holds a Humphrey hearing soon after you are arrested for a crime. During the hearing, the judge:

• examines your financial ability to post bail, and
• makes certain that you are not kept in jail simply because you do not have the financial means to pay bail.¹

It is against the California constitution for you to be held on criminal charges solely because you cannot afford to pay bail.²

A judge can only keep you in custody in a criminal case without bail if the court finds strong evidence to show that custody is necessary to protect public safety.³

Note that a “Humphrey hearing” gets its name from Kenneth Humphrey, who was a real defendant in a California Court of Appeals case. Kenneth Humphrey was arrested in 2017 on charges of:

• residential burglary,
• causing injury on an elderly victim, and
• misdemeanor theft.

The Court of Appeals ruled that the trial court’s failure to consider Mr. Humphrey’s financial situation and ability to pay bail was a violation of his constitutional rights.⁴

2. What happens at a Humphrey hearing?

During a Humphrey hearing, the judge will typically evaluate the defendant’s financial status and his or her ability to pay money bail. A judge may ask you such questions as:

• What do you do for work?
• What is your salary or how much money do you make?
• Outside of work, do you have any other sources of money?
• What is your family situation?

If a judge finds that your ability to pay bail is a real issue, the judge can set bail accordingly. For example, the judge may lower the amount of bail from the amount the judge would typically set in similar cases.

3. How much is bail?

Each California county has its own bail schedule that set forth bail amounts. The specific amount of bail will usually vary depending on the particular crime that a district attorney files.⁵

Issues involving bail amounts and pretrial detention/pretrial release are usually resolved during a defendant’s:

• arraignment, or
• bail hearing.

Defendants typically post bail by means of:

• cash bail,
• a bail bond, or
• a property bond.

4. Is bail used in every criminal case?

No. There are many times when a judge awards a defendant with “own recognizance” release.

With an “own recognizance” release, a judge releases you from jail without you having to post bail. Own recognizance release is sometimes referred to as “O.R. release.”

Since you do not have to pay bail with O.R. release, a judge essentially releases you from custody based solely on your promise to attend all future court dates.

People usually get O.R. release if charged with a:

• misdemeanor, or
• non-serious felony.

Bail is often reserved for cases involving serious or violent felonies.

Two things usually take place if you do not show up for a court appearance on O.R. release. These include:

1. a judge will issue a bench warrant for your arrest, and
2. you will be charged with the offense of “failure to appear.”

The penalties for failure to appear will vary depending on whether the original crime you were charged with was a misdemeanor or felony.

WHAT IS A HUMPHREY’S HEARING AS IT RELATES TO BAIL?

Basically, in the 27 years that I’ve been practicing criminal defense, bail was pretty much controlled by a couple of things.

The judge would look at whether or not the defendant was a flight risk and whether or not the defendant was a danger to the community.

When looking at these things, there’s a bunch of different subcategories that would be assessed by the judge in setting the person’s bail or releasing them on their own recognizance, where they sign a promise to appear and don’t have to put up any money or use a bail bondsman.

THE END OF CASH BAIL

In 2018, the First District Court of Appeal fought California money bail system in California. The court the system violates due process and equal protection of defendants.

Their arguments were primarily due to the fact that the current money bail system imprisons citizens because they can’t afford to pay bail.

Due to this ruling, the California Supreme Court had to review the system and consider a defendant’s ability to pay bail when setting a bail amount to be released from custody.

Prior to this ruling, a defendant’s ability to pay bail was not considered, but now the court has prohibited this type of detention.

THE HUMPHREY CASE

The case was brought by Kenneth Humphrey, joined by then Attorney General Xavier Bacerra, is the argument that nobody should lose the right to freedom because they can’t afford to post bail.

Mr. Humphrey, 66, was arrested on May 23, 2017, as part of a long struggle with drug and alcohol addiction, was arrested again. This time, he was arrested and charged with first-degree residential robbery and burglary of an elderly victim.

He was accused of inflicting injury on an elder adult, and theft of an elder, a misdemeanor charge.

The elderly victim claimed Mr. Humphrey followed him into his apartment, located in San Francisco. Once inside, he allegedly demanded all his cash and told him he would be harmed if he didn’t comply.

The victim told him he had no money, making Humphrey angry who then threw the victim’s cell phone on the floor. The victim then gave him $2 in cash and some cologne before he finally exited the apartment.

THE ARREST AND BAIL

Humphrey was arrested and then arraigned in court on May 31, 2017, where his public defender asked for a release on his own recognizance (OR), requesting no money bail would be set, due to his age and other factors.

Humphrey’s prior felony convictions were very old and he had no arrests for the last 14 years, but still the prosecutor requested a $600,000 bail, which was approved by the judge.  After a bail hearing, the amount was lowered to $350,000.

A petition for a writ of habeas corpus was filed in the First Appellate District of California, Division Two.

The argument was that setting a bail amount as a condition of release the defendant can’t pay is the same as a pretrial detention order and that detention was not necessary and violates the 14th Amendment’s guarantees of equal protection and due process.

The appeals court agreed and ruled the court didn’t consider whether Humphrey could realistically pay the required bail, there had to be a new hearing, which had to include his financial situation.

A new hearing was conducted and Mr. Humphrey was released, but was ordered to stay-away from the victim and to a substance abuse program.

ASSESSMENT OF A DEFENDANT’S ECONOMIC WEALTH

Back to present day, there’s now a new factor at play which relates to the Humphrey case.

Basically what it has to do with, is that it’s not fair if one person, for example, is charged with domestic violence and that person has a lot of money and they can easily post the $50,000.00 bail.

Whereas, somebody else, who has the exact same charges and set of circumstances, who doesn’t have any money, can’t post the bail.

That’s where this Humphrey case comes in, and the judge must assess the person’s economic wealth in setting their bail.

The judge will ask what the person makes per month, what type of responsibilities they have financially.

THE TYPE OF CRIME MATTERS – DANGER TO THE COMMUNITY

Now, unfortunately, what a lot of people don’t realize as I’m seeing people complain that they’re not getting out related to a Humphrey’s hearing is that they’re also going to still look at the type of crime that the person is charged with.

For example, I had someone making a Humphrey’s argument who was charged with a very serious sex-related offense, where they were basically breaking into women’s houses and sexually assaulting them.

In that circumstance, the judge is going to find that this whole Humphrey’s thing is outweighed by the person’s dangerousness to the community.  That’s usually what it is going to boil down to — danger to the community.  Yes, it’s still important:

• whether or not that person is a flight risk,
• whether they’ve got a home in the community, and
• whether they have a job.

All of those things are very important.  But, I can tell you right now, as it relates to bail in Los Angeles County, they’re going to look at:

• how dangerous that person is,
• how dangerous to the alleged victim in the case,
• how dangerous to other people in society.

So, if you can beat that argument, if you can mount the argument that the person is not dangerous in any way.

Then you’re just left with the issue of whether or not that person is going to come back to court, or they have any failures to appear on their record, and once again, you put yourself in a great position if you can get around this argument of dangerousness to the community.

In re Humphrey

California Supreme Court Holds Detention Solely Because of Inability to Pay Bail Unconstitutional

Across the nation, people are arrested and detained pretrial solely because they lack the money to pay bail.¹ Although many state constitutions grant individuals a right to be released on bail except in the most serious cases, “courts use unaffordable bail conditions to detain people deemed too dangerous or flight prone to release.”² Recently, in In re Humphrey,³ the Supreme Court of California held that detaining a person pretrial solely because they cannot afford bail violates due process and equal protection.⁴ Consequently, California courts must consider ability to pay when setting bail, and courts cannot set unaffordable bail that would result in pretrial detention unless there is clear and convincing evidence that no other condition would reasonably protect the government’s interests in public or victim safety or court appearance.⁵ Humphrey provided a significant substantive protection for indigent persons who might otherwise be jailed because of their poverty. However, the decision left unresolved core questions about the role of public safety in California’s bail scheme — a result that may limit the holding’s practical impact on reducing the hardships posed by bail and pretrial detention in the State of California.

On May 23, 2017, sixty-three-year-old Kenneth Humphrey followed seventy-nine-year-old Elmer J. into his apartment in the senior home in which they both lived, threatened him, threw his phone to the ground, demanded money, and stole $7 and a bottle of cologne.⁶ Humphrey was arrested for first-degree residential robbery and burglary against, injury of, and misdemeanor theft from an elder adult.⁷ At his arraignment, Humphrey requested release on his own recognizance,⁸ but at the prosecutor’s request,⁹ the trial court set a $600,000 money bail — without considering Humphrey’s inability to pay that sum.¹⁰ Humphrey filed a motion for a formal bail hearing to review the order.¹¹ At the hearing, the prosecutor argued that robbery is “a serious and violent felony,” so the court would need to find “unusual circumstances” to deviate from the prescribed bail amount.¹² The prosecutor maintained that the high money bail was appropriate because Humphrey’s substance abuse was “a great public safety risk” and the fact that Humphrey faced a lengthy sentence under California’s three-strikes law made him a “flight risk.”¹³ The trial court found there were “public safety and flight risk concerns” and denied release on Humphrey’s own recognizance or supervised release, but reduced bail to $350,000 on the condition that he participate in a substance abuse treatment program.¹⁴ Humphrey appealed, filing a habeas corpus petition that argued that conditioning release on an amount of money bail that one cannot pay is “the functional equivalent of a pretrial detention order.”¹⁵

The California Court of Appeal reversed and remanded the case for bail proceedings that would take into account Humphrey’s ability to pay.¹⁶ It noted that article I, section 12 of the California Constitution “establishes a person’s right to obtain release on bail from pretrial custody” except in certain cases of capital crimes, violent or sexual felonies, and serious threats of violence.¹⁷ Moreover, it held that:

[T]he due process and equal protection clauses of the Fourteenth Amendment require the court to make two additional inquiries and findings before ordering release conditioned on the posting of money bail — whether the defendant has the financial ability to pay the amount of bail ordered and, if not, whether less restrictive conditions of bail are adequate to serve the government’s interests . . . .¹⁸

Imposing unaffordable bail that resulted in Humphrey’s detention unjustifiably circumvented those inquiries and was thus unconstitutional.¹⁹ On remand, the trial court imposed nonfinancial conditions and released Humphrey.²⁰ Neither party appealed, but the Supreme Court of California granted review on its own motion in order to address “the constitutionality of money bail” in California and “the proper role of public and victim safety in making bail determinations.”²¹

The California Supreme Court affirmed.²² Writing for the court, Justice Cuéllar held that “conditioning freedom solely on whether an arrestee can afford bail is unconstitutional.”²³ In the bail context, an individual’s due process liberty interest in freedom from detention and equal protection right not to be detained solely because of indigency converge.²⁴ This case presented a novel application of the Fourteenth Amendment, so the court reasoned by analogizing to two United States Supreme Court cases from other contexts: Bearden v. Georgia²⁵ and United States v. Salerno.²⁶ In Bearden, the Supreme Court held that Georgia had violated the Fourteenth Amendment when it revoked Danny Bearden’s probation based on his failure to pay restitution and court fines, because it did so without first finding either that Bearden had the ability to pay and was refusing to do so or that no alternative measures would meet the State’s penological interests.²⁷ If Georgia’s interests could be met without imprisonment, it would violate substantive due process and equal protection to jail Bearden solely because his poverty left him unable to pay, despite his bona fide efforts.²⁸

The Humphrey court explained that in the bail context, the state’s compelling interest is not to punish²⁹ but rather “to ensure the defendant appears at court proceedings and to protect the victim, as well as the public, from further harm.”³⁰ Nonetheless, Bearden’s reasoning similarly applied: “[I]f a court does not consider an arrestee’s ability to pay, it cannot know whether requiring money bail in a particular amount is likely to operate as the functional equivalent of a pretrial detention order.”³¹ And detention “solely because” of one’s inability to pay is an unconstitutional infringement on an individual’s due process and equal protection rights against wealth-based detention.³²

To complement this hybrid due process and equal protection rationale,³³ the court also invoked United States v. Salerno, in which the U.S. Supreme Court upheld the federal Bail Reform Act of 1984.³⁴ In Salerno, the Court established that pretrial “liberty is the norm, and detention . . . the carefully limited exception.”³⁵ The Bail Reform Act met this standard by authorizing detention in the name of public safety only “for a specific category of extremely serious offenses.”³⁶ Thus, the Humphrey court emphasized, individuals retain a fundamental due process right to pretrial liberty that is not contingent on financial position³⁷ and can be overridden only in narrowly tailored cases.³⁸

Following these conclusions, the court provided a “sketch [of] the general framework” for imposing money bail in California.³⁹ California courts may still impose money bail, but only if (a) the court has considered whether nonfinancial conditions may reasonably protect public and victim safety and assure court appearance, and (b) the court considers the individual’s ability to pay when setting the bail amount.⁴⁰ Courts may set bail at a level that will result in the person’s detention only if there is clear and convincing evidence that no other conditions of release could reasonably protect the state’s interests in public and victim safety or court appearance.⁴¹ In Humphrey’s case, “the trial court . . . failed to consider Humphrey’s ability to afford $350,000 bail (and, if he could not, whether less restrictive alternatives could have protected public and victim safety or assured his appearance in court).”⁴² So, the court affirmed the appellate court’s decision to grant Humphrey a new bail hearing.⁴³ All the other justices concurred with no separate opinions.⁴⁴

In Humphrey, the California Supreme Court established an important protection for indigent persons in California by extending the reasoning of Bearden and Salerno to the pretrial money bail context. However, the briefing, oral argument, and lower appellate opinion also discussed two important questions about the appropriate relationship between money bail and public safety: first, whether money bail in California rationally provides any incentive not to commit a crime pretrial, and second, whether California’s state constitution provides a right to bail that limits courts’ ability to detain persons pretrial on public safety grounds. The Humphrey opinion skirted these issues and in doing so limited its full potential to reduce the hardships posed by bail and pretrial detention in California.⁴⁵

Before addressing the limitations of the decision, it is important to note the huge strides the California Supreme Court made in preventing persons from being jailed pretrial simply because of their poverty.⁴⁶ This protection is quite valuable in light of the well-documented, detrimental impact of pretrial detention,⁴⁷ the race and class inequities of the bail system,⁴⁸ and the pressures innocents face to plead guilty when they cannot afford bail.⁴⁹ The state does have compelling interests in setting pretrial conditions “to ensure the defendant appears at court proceedings and to protect the victim, as well as the public, from further harm.”⁵⁰ But in California’s pre-Humphrey system, many indigents languished in California’s jails even though they posed no safety or flight risk, whereas others who may have posed such risks were released because they could pay their money bond.⁵¹ Humphrey rejected that approach by holding that a court must first consider whether nonfinancial release conditions may reasonably satisfy the state’s interests.⁵² If they cannot, then the court must consider ability to pay, so that a court does not issue bail amounts that are functionally detention orders for less-resourced individuals but which permit release for those with the ability to pay.⁵³

Humphrey takes away a court’s ability to set unaffordable bail as a way to functionally implement a detention order when it could not meet the requirements of an explicit detention order. Humphrey extends the same substantive and procedural standards required for pretrial detention under article I, section 12 of the California state const-itution — a showing of “clear and convincing evidence” of a threat of serious harm or flight risk⁵⁴ and “clear and convincing evidence that no other conditions of release could reasonably protect those interests”⁵⁵ — and the Fourteenth Amendment to orders of unaffordable bail that cause individuals to be detained pretrial. It is an “open secret” that courts in right-to-bail states often use unaffordable bail to evade the state’s constitutional restrictions on pretrial detention.⁵⁶ Humphrey’s holding has the potential to bring an end to that practice and revitalize the right to release in a significant number of cases involving no threat of serious violence or in which nonfinancial conditions would suffice.

There are, however, two aspects left open by the Humphrey opinion that may limit the transformative potential of its holding. First, Humphrey’s sketch of California’s bail framework suggests that where no nonfinancial condition can protect the government’s interests, a court may conclude that money bail is “reasonably necessary” to assure public and victim safety or court appearance.⁵⁷ It may then set affordable bail based on an individual’s ability to pay, charged offense, and criminal record.⁵⁸ The typical rationale for money bail is that it incentivizes persons released pretrial to return to court to retrieve the money they posted as bail.⁵⁹ But, as even the District Attorney acknowledged in Humphrey, money bail in California cannot possibly serve as an incentive for noncriminal behavior because, under California law, the person can retrieve their bail money even if they commit a new offense while released.⁶⁰ Other jurisdictions have rejected that money bail can ever be a reasonable way to secure public safety,⁶¹ yet the California Supreme Court chose not to reckon with this in Humphrey. Instead, it left in place a legal fiction with real consequences for those who are forced to pay bail under its rationale.⁶² It will be up to petitioners to argue that within Humphrey’s framework, there is no rational basis for a court to conclude that money bail is reasonably necessary to assure public or victim safety.

Second, the court left open the possibility that the right to bail provided by article I, section 12 of California’s state constitution was abrogated by article I, section 28(f)(3).⁶³ Section 28 introduces broader victim and public safety considerations into the bail determination.⁶⁴ The State argued that the court should interpret section 28 to mean that defendants who otherwise have a right to bail under section 12 — because they neither are charged with capital crimes nor present clear and convincing evidence of a substantial likelihood of inflicting great bodily harm on release⁶⁵ — can nevertheless be detained as long as a court finds they “present a risk to victim or public safety by a preponderance of the evidence.”⁶⁶ This construction would both lower the evidentiary standard and expand section 12’s narrow exemptions to encompass any public or victim safety risk. Yet the Court of Appeal chose not to address this argument,⁶⁷ and the Supreme Court skirted it as well.⁶⁸ A future embrace of such a view of section 28 would abrogate the currently very limited standard for permissible pretrial detention. As such, it would significantly undercut the protection against pretrial detention provided by Humphrey by making it easier for courts to justify pretrial detention explicitly without needing to rely on unaffordable bail.

BAIL DETERMINATIONS MUST BE BASED UPON CONSIDERATION OF INDIVIDUALIZED CRITERIA

On August 26, 2020, the Supreme Court of California issued an order making a part of the California First District Court of Appeal’s 2018 case, In re Humphrey,[1] binding on trial courts pending final resolution of the case.  In Part III of that opinion, the First District emphasized that bail determinations must be based upon consideration of individualized criteria, including a person’s particular circumstances and ability to pay.

Background

California Bail Statutes

The California Constitution contains two sections pertaining to bail: Sections 12 and 28 of article I.

Section 12 “was intended to abrogate the common law rule that bail was a matter of judicial discretion by conferring an absolute right to bail except in a narrow class of cases.” (In re Law (1973) 10 Cal.3d 21, 25, citing In re Underwood (1973) 9 Cal.3d 345 and Ex parte Voll (1871) 41 Cal. 29, 32.)  The section “establishes a person’s right to obtain release on bail from pretrial custody, identifies certain categories of crime in which such bail is unavailable, prohibits the imposition of excessive bail as to other crimes, sets forth the factors a court shall take into consideration in fixing the amount of the required bail, and recognizes that a person ‘may be released on his or her own recognizance in the court’s discretion.” (In re York (1995) 9 Cal.4th 1133, 1139-1140, fn. omitted).

Subsections (b) and (c) of section 12 provide that a court cannot deny admission to bail to a defendant charged with violent acts or who threatened another with great bodily harm, except on the basis of “clear and convincing evidence” that there is “a substantial likelihood the defendant’s release would result in great bodily harm to others.”  The factors the court must consider in setting the amount of bail are “the seriousness of the offense charged, the previous criminal record of the defendant, and the probability of his or her appearing at the trial or hearing of the case.”

Subdivision (f)(3) of Section 28, entitled “Public Safety Bail,” provides that “[i]n setting, reducing or denying bail, the judge or magistrate shall take into consideration the protection of the public, the safety of the victim, the seriousness of the offense charged, the previous criminal record of the defendant, and the probability of his or her appearing at the trial or hearing of the case.  Public safety and the safety of the victim shall be the primary consideration.”

The statutes implementing the constitutional right to bail are in title 10, chapter 1 of the Penal Code. (Sections 1268–1276.5.)  Before any person arrested for any specified serious offense may be released on bail in an amount that is either more or less than the amount contained in the schedule of bail for that offense, or may be released on his or her own recognizance, a hearing must be held at which “the court shall consider evidence of past court appearances of the detained person, the maximum potential sentence that could be imposed, and the danger that may be posed to other persons if the detained person is released.” (Section 1270.1 (a), (c).)  In determining whether to release the detained person on his or her own recognizance, “the court shall consider the potential danger to other persons, including threats that have been made by the detained person and any past acts of violence.  The court shall also consider any evidence offered by the detained person regarding his or her ties to the community and his or her ability to post bond.” (Section 1270.1(c).)  Where bond is set in a different amount from that specified in the bail schedule, “the judge or magistrate shall state the reasons for that decision and shall address the issue of threats made against the victim or witness, if they were made, in the record.” (Section 1270.1(d).)

Section 1275, which describes the factors judicial officers are obliged to consider in making bail determinations, follows the exact language of Section 28(f)(3) in declaring that “[i]n setting, reducing, or denying bail, a judge or magistrate shall take into consideration the protection of the public, the seriousness of the offense charged, the previous criminal record of the defendant, and the probability of his or her appearing at trial or at a hearing of the case.  The public safety shall be the primary consideration.” (Section 1275(a)(1).)

The only requirement in the bail statutes that a court considering imposition of money bail take into account the defendant’s financial circumstances is that the court consider “any evidence offered by the detained person” regarding ability to post bond. (Section 1270.1(c).)  Nothing in the statutes requires the court to consider less restrictive conditions as alternatives to money bail.

In re Humphrey Court of Appeal Case

In re Humphrey involved 63-year old retiree and San Francisco resident, Kenneth Humphrey, who was arrested and charged with first degree robbery, first degree residential burglary, inflicting injury (but not great bodily injury) on an elder and dependent adult, and theft from an elder or dependent adult, charged as a misdemeanor.  Humphrey had followed a 79-year old man into the man’s apartment, threatened to put a pillowcase over the man’s head after demanding money, and took $7 cash and a bottle of cologne before leaving.  The trial court did not grant Humphrey’s request to be released on his own recognizance or any kind of supervised release, and instead, set bail at $600,000 based on the bail schedule.

Humphrey filed a motion for a formal bail hearing pursuant to Penal Code section 1270.2, asserting that the bail was unreasonable, beyond his means, and violated his federal Constitutional rights.  The motion cited extensive statistical studies and presented significant detail about Humphrey’s family and personal history, including his ties to the community and his “life-long” efforts to deal with his drug addiction stemming from his father’s murder when Humphrey was 16 years old.  Humphrey also represented that after he had been accepted into a residential program addressing substance abuse and homelessness, and asserted that this residential program would ensure supervision and community safety, whereas placement in jail would deny him the opportunity to deal effectively with his substance abuse problem.

At the hearing, the pretrial services agency submitted a one-page form risk assessment report to the trial court.  The report did not suggest that any agency representative ever met with Humphrey.  There was no individualized explanation of its risk assessment of Humphrey, no information regarding the possible use of an unsecured bond, or regarding any supervised release programs as less restrictive release options.  The record did not indicate that the trial court ever asked the pretrial services agency to provide any such information.  The trial court acknowledged Humphrey’s efforts to engage in drug treatment but maintained that a high bail was still warranted because of public safety and flight risk concerns.  The trial court did not note that, as indicated in the risk assessment report and emphasized by Humphrey’s counsel, Humphrey had never previously failed to appear at a court ordered hearing.  The trial court modified the bail to $350,000.  Humphrey was detained prior to trial due to his financial inability to post bail.

Humphrey filed a petition for writ of habeas corpus with the First District Court of Appeal, contending that he was denied due process of law and deprived of his personal liberty on the basis of poverty, under the due process and equal protection clauses of the Fourteenth Amendment to the United States Constitution and article 1, Section 7 of the California Constitution.  Specifically, Humphrey claimed that bail was set by the trial court without inquiry or findings concerning either his financial resources or the availability of a less restrictive non-monetary alternative condition or combination of conditions of release.

The Court of Appeal observed that the prosecutor had presented no evidence that nonmonetary conditions of release could not sufficiently protect the 79-year-old victim or public safety, and that the trial court found Humphrey suitable for release on bail.  However, the trial court still set bail in an amount it was impossible for Humphrey to pay.  The Court of Appeal determined this effectively constituted a sub rosa detention order lacking the due process protections constitutionally required to attend such an order.

The appellate court reversed and remanded, declaring that Humphrey was entitled to a new bail hearing at which the trial court must inquire into and determine his ability to pay, consider nonmonetary alternatives to money bail, and, if it determined Humphrey was unable to afford the amount of bail the trial court deemed necessary, follow the procedures and make the findings necessary for a valid order of detention.  The First District concluded, among other things, that equal protection and due process principles required that 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.

Events Following the Court of Appeal’s Decision

The California Supreme Court granted review on its own motion on May 23, 2018.  Under California Rules of Court, rule 8.1115(e)(1), the Court of Appeal’s published opinion therefore “has no binding or precedential effect, and may be cited for persuasive value only,” “unless otherwise ordered by the Supreme Court.”  In June 2018, Humphrey’s counsel filed a letter requesting that the Supreme Court order that the Court of Appeal opinion have a binding or precedential effect until the Supreme Court issues its own decision on the case. (See Rule 8.1115(e)(3).)  The Supreme Court denied the motion.

On August 4, 2020, Humphrey’s counsel filed a letter renewing the request to grant the Court of Appeal opinion a binding or precedential effect, based on changed circumstances.  On August 19, 2020, Attorney General Xavier Becerra sent a letter to the Supreme Court supporting the request, in part, asserting that “the unexpected change in circumstances caused by the unprecedented impacts of the novel coronavirus pandemic warrant reconsideration of that earlier decision.”  The letter noted that the First District maintained that where a criminal defendant is otherwise judged suitable for release pending trial, that defendant should not be detained through the setting of bail in an unnecessarily high amount that the defendant cannot pay.  The Attorney General said this core principle had “become especially important for bail decisions occurring during the pendency of [the Supreme] Court’s review.”  With the exception of Part IV, the Attorney General thus joined in Humphrey’s renewed request for the Supreme Court to order that the appellate decision have binding precedential effect.

The Supreme Court granted Humphrey’s renewed request to restore the precedential effect of the Court of Appeal case, but only as to Part III of the opinion, discussed below.

Part III of In re Humphrey

The First District Court of Appeal held that bail determinations must be based upon consideration of individualized criteria.  The Court explained that failure to consider a defendant’s ability to pay before setting money bail is “one aspect of the fundamental requirement that decisions that may result in pretrial detention must be based on factors related to the individual defendant’s circumstances.”  The Court stated that a defendant may not be imprisoned solely due to poverty and that rigorous procedural safeguards are necessary to assure the accuracy of determinations that an arrestee is dangerous and that detention is required due to the absence of less restrictive alternatives sufficient to protect the public.

The First District discussed the United States Supreme Court case, Stack v. Boyle (1951) 342 U.S. 1, in which several petitioners were charged with conspiring to violate the Smith Act, which made it a criminal offense to advocate the violent overthrow of the government or to organize or be a member of any group devoted to such advocacy.  After bail was fixed in the uniform amount of $50,000 for each petitioner, they moved to reduce the amount as excessive, submitting statements regarding their individual circumstances and financial resources, none of which was controverted by the government. Stack, at p. 3.

The only evidence presented by the government was a showing that four persons previously convicted under the Smith Act in a federal court in another state had forfeited bail.  Noting that the government did not deny bail had been fixed in a sum much higher than that usually imposed for offenses with like penalties, the United States Supreme Court questioned the government’s failure to make any factual showing justifying the unusually high amount of bail uniformly fixed for each of the four petitioners, observing, “Since the function of bail is limited, the fixing of bail for any individual defendant must be based upon the standards relevant to the purpose of assuring the presence of that defendant. . . .” (Stack, supra, 342 U.S. at p. 5, italics added.)  Justice Jackson observed in his concurring opinion, “[e]ach defendant stands before the bar of justice as an individual.  Even on a conspiracy charge[,] defendants do not lose their separateness or identity. . . . The question when application for bail is made relates to each one’s trustworthiness to appear for trial and what security will supply reasonable assurance of his appearance.” (Id. at p. 9, conc. opn. of Jackson, J.)

Here, the First District noted that the $600,000 bail initially ordered was prescribed by the county bail schedule, which was also the basis for the $350,000 reduced bail order.  The Court explained that bail schedules provide standardized money bail amounts based on the offense charged and prior offenses, regardless of other characteristics of an individual defendant that bear on the risk he or she currently presents.  The Court stated that these bail schedules, therefore, “represent the antithesis of the individualized inquiry required before a court can order pretrial detention.”  The Court observed that bail schedules have been criticized as undermining the judicial discretion necessary for individualized bail determinations, as based on inaccurate assumptions that defendants charged with more serious offenses are more likely to flee and reoffend, and as enabling the detention of poor defendants and release of wealthier ones who may pose greater risks.

The Court of Appeal explained that it did not criticize the trial court’s consultation of the bail schedule because such consultation was statutorily required here.  Under Penal Code section 1275(c), for serious or violent felonies, the trial court could not depart from the amount prescribed by the schedule without finding unusual circumstances.  The First District stated that the schedule provided a useful measure of the relative seriousness of listed offenses and was useful in providing a means for individuals arrested without a warrant to obtain immediate release without waiting to appear before a judge.  Moreover, the schedule helped provide a starting point for provisional determinations while allowing time for the assessment of a defendant’s financial resources and less restrictive alternative conditions by the pretrial services agency.

However, the Court concluded that “unquestioning reliance upon the bail schedule without consideration of a defendant’s ability to pay, as well as other individualized factors bearing upon his or her dangerousness and/or risk of flight, runs afoul of the requirements of due process for a decision that may result in pretrial detention.  Once the trial court determines public and victim safety do not require pretrial detention and a defendant should be admitted to bail, the important financial inquiry is not the amount prescribed by the bail schedule but the amount necessary to secure the defendant’s appearance at trial or a court-ordered hearing.”  Moreover, for poor individuals arrested for felonies, reliance on bail schedules constituted “a virtual presumption of incarceration.”[2]

Here, the Court of Appeal observed that the prosecution had not presented any evidence to establish that “no condition or combination of conditions of release would ensure the safety of the community or any person” (United States v. Salerno, 481 U.S. 739, 743-744), and that would thereby justify abridgement of Humphrey’s freedom while awaiting trial.  The First District noted that neither the prosecution nor the trial court disputed that any risk Humphrey posed to the victim and public safety could be sufficiently mitigated with the conditions of release the trial court imposed.  The Court also expressed that the conditions requiring Humphrey to participate in the supervised residential drug treatment program and to stay away from the victim, addressed the particular circumstances of Humphrey and his offense, but the bail amount was based solely on the bail schedule rather than any individualized inquiry into the amount necessary to satisfy the purposes of money bail in this case.  The Court noted that the record did not show that Humphrey was able to pay even the reduced bail amount of $350,000, and nothing in the record suggested that his claim of indigency was not bona fide.  The First District concluded that the trial court thus reached the “anomalous result of finding [Humphrey] suitable for release on bail but, in effect, ordering him detained….”

The First District Court of Appeal thus determined in Part III of its opinion that the trial court did not make its bail determination after considering individualized criteria as required.  With the California’s Supreme Court order making Part III of the opinion binding on trial courts pending final resolution, trial courts must therefore hereafter make such individualized inquiries, including regarding ability to pay, and not merely consult the bail schedule to set bail.

HOW THIS AFFECTS YOUR AGENCY

The Supreme Court’s decision to provide precedential effect to Section III of the Humphrey decision, pending its ultimate determination of the case, will likely result in additional persons receiving lower bail amounts that what would otherwise be determined pursuant to the individual county bail schedule.  In turn, this will likely result in fewer persons being held in pretrial custody.  This decision’s overall effects on public safety remain to be seen.  However, there are a number of anecdotal instances of those facing criminal charges reoffending while out on bail, or pretrial release, during these trying times.  The Supreme Court’s decision may also signal how it may ultimately rule on this issue when it makes a final overall ruling in the Humphrey case.

CELEBRATING THE ANNIVERSARY OF THE HUMPHREY DECISION – THE ONLY REAL BAIL REFORM IN CALIFORNIA

On January 25, 2018, the California appellate court published a groundbreaking decision — In Re: Kenneth Humphrey — that challenged California’s broken bail system as unlawful and discriminatory. The case, brought by Civil Rights Corps and the San Francisco Public Defender’s Office, was filed on behalf of Mr. Kenneth Humphrey — to date the most significant figure in the struggle for bail reform in California history. Mr. Humphrey, a retiree residing in San Francisco, was accused of following a neighbor into his residential hotel room and stealing $5 and a bottle of cologne. He was originally detained on a $600,000 bail amount. His attorneys filed a habeas appeal challenging not only his detention, but also the bail system itself that forced him and thousands of others across the state to be priced out of their liberty and stripped of their freedom. The 2018 January appellate ruling declared Mr. Humphrey’s detention as unconstitutional, and created a new pathway to ending pretrial detention and a parasitic bail bond industry that capitalized on the criminal court system’s targeting of communities of color.

One year later, we honor the courage of Mr. Humphrey, the vigilance of his legal team, and the movement of communities impacted by money bail and pretrial detention who are using the Humphrey decision to free their loved ones. The anniversary though comes at an extremely tenuous time in California’s moment of changes in bail law. Rather than building off of the Humphrey decision to further the states’ need for pretrial freedom while eliminating money bail — in the end of 2018 legislators voted in an expansive pretrial detention system masquerading as bail reform called SB10 which gives unfettered power to judges, and relies on racist risk assessment tools, to incarcerate those accused of a crime.

And simultaneously, the San Francisco District Attorney’s Office, despite public messaging of supporting bail reform, challenged the Humphrey decision, and it is now headed to the California Supreme Court to be heard later this year. Given the threat of SB10, as well as a ballot initiative referendum brought by the bail industry that aims to bring back money bail, the Supreme Court’s upcoming decision on Humphrey may ultimately determine the fate of pretrial justice in California.

If the Supreme Court rules in favor of the spirit of Mr. Humphrey’s fight — to not only end unconstitutional use of money bail, but to restrict pretrial detention to only exceptional cases. But if the Supreme Court sides with the prosecutors and does not limit the framework of SB10, then judges can have wide discretion to detain, hundreds of thousands of people could be detained every year, and California’s movement for pretrial justice will suffer a significant blow

What we know from one year since the Humphrey ruling is that communities are ready and able to not only eliminate money bail, but pretrial detention as well — and will use any tool at our disposal to free our people. When De-Bug heard about the ruling at the beginning of 2018 we partnered with other participatory defense hubs and community groups across the state to hold a coordinated set of actions in front of county courts on February 21, 2018 so those most impacted by bail could know about the change in law. Under the banner “Day in California Court” community groups comprised of people directly impacted by the broken bail system held rallies in front of 9 different county courts from San Francisco to San Diego, handing out information about how to work with public defenders to secure release through the new bail hearings that the Humphrey ruling made possible. They then filled the courtrooms to do court watch, letting judges and prosecutors know that the community is present. The day was so powerful, groups went on to build sustained court watch and court intervention strategies to ensure court actors could be held to the Humphrey standard. We chronicle this collective initiative on a site called DayinCAcourt.org — a running public diary of California’s court system.

Through this work it also became apparent that a legal win does not automatically translate to freedom. If the Humphrey ruling was a new lever for freedom, its value was only realized when pulled by the community and pro-active public defenders. For the entrenched culture of the courts to change, communities need to be in the court exerting power and pressure.

We celebrate Mr. Humphrey, his freedom, the movement that was fueled through his fight, and call on the Supreme Court to be responsive to the call for justice by the people of California.

Please check out this photo essay chronicling Mr. Humphrey as he goes to court for a hearing just days before the anniversary of the ruling. He starts his day at home, with this partner, and challenging the allegations of his case from the position of power that freedom affords, without the coercive pressure of being locked up pretrial.

Attached are snapshot stories from organizers that are sitting with families and community members in Humphrey bail hearings that show both what is possible, and what is needed to achieve freedom in California.

Mr. Humphrey’s Day In Court:
By Charisse Domingo

This is a photo essay of Mr. Kenneth Humphrey on the day he went to court in late January 2019. Mr. Humphrey’s case, and his fight for freedom, challenged California’s broken bail system, and has resulted in people across California who were otherwise detained because they couldn’t afford bail, to be released pretrial through what is being called Humphrey Hearings. To date, he is the most significant figure in the struggle for bail reform in state’s history. His appellate case will be heard by the California Supreme Court later this year, and will significantly impact the fate of pretrial justice for the state and country.

Eight months after he was released from his own Humphrey hearing, Mr. Kenneth Humphrey sits in his home with his longtime partner Judy. They live a quiet life – walks on the lake, family gatherings.

Pausing in front of the hallway mirror before he heads to court, Mr. Humphrey is relieved to wear his own clothes as he attends court.

While Mr. Humphrey is grateful to be out on his own recognizance, the thought of facing a life sentence still wears heavy on his mind. Mr. Humphrey is accused of stealing $5 and a bottle of cologne from a neighbor. And because of his prior strikes from years ago, he is facing his 3rd strike.

Ms. Judy watches the news as Mr. Humphrey sits with his morning breakfast of tea, egg and toast. In about half an hour, he will be leaving home to go to court to hear about whether his case is set for trial or dismissed.

Morning peaks as Mr. Humphrey and Ms. Judy head out to court. To make the 9AM court appearance in San Francisco, they leave home by 7AM and sit in traffic.

Ms. Judy has made all of Mr. Humphrey’s court appearances to support him, and today is no different. This time, they head inside to court together, rather than she waiting from the pews and he walking out of the locked doors in an orange jumpsuit.

About a year ago, San Francisco Public Defender Jeff Adachi and community organizations with the Participatory Defense Network like Young Women’s Freedom Center stood outside the steps of this courthouse to celebrate the historic Humphrey ruling that changed money bail in California as we know it. Today, a year later, Mr. Humphrey stands outside those same steps, carving a space in history for those courageous enough to change it.