On March 25, 2021, the California Supreme Court handed down its highly-anticipated opinion in In re Kenneth Humphrey. This case has become emblematic of the growing political and legal opposition to using cash bail.
As the court noted, the traditional use of cash bail recognizes the state's compelling interest in detaining defendants pretrial who pose either a risk of flight or a threat to public safety.
In practice, however, a defendant is often detained pretrial not based on a “careful, individualized determination of the need to protect public safety” but rather on their financial inability to post the sum listed in the county's uniform bail schedule.
The bail schedule is set periodically by a committee on a county-by-county basis and sets standard bail amounts based on the following:
- Charged offense,
- Defendant's criminal history,
- Probationary status, and
- Other factors.
In practice, many prosecutors request, and judges impose, “schedule” bail for most defendants.
The Court's Holdings
Humphrey, who was joined in his appeal by the Attorney General of California, challenged this system. The court said, “No person should lose the right to liberty simply because that person can't afford to post bail.” The court offered three critical holdings:
- The “common practice” of conditioning a defendant's pretrial release “solely” on whether they can afford bail is unconstitutional;
- In cases where a financial condition is necessary, the court must consider the defendant's ability to pay in setting the amount of bail rather than mechanically applying the county's bail schedule;
- In “unusual” cases where no combination of conditions can adequately protect public safety, a court may detain the defendant without bail, but only upon finding clear and convincing evidence that no other conditions will suffice.
Details of the Humphrey Case
He had requested an own recognizance release, meaning he would be released pretrial without having to post a cash bail.
It was also alleged by the prosecution that he had four prior “strike” convictions within the meaning of the California three-strikes law and four prior serious felony convictions, all for robberies.
After he moved for reconsideration on multiple grounds, the trial court reduced bail to $350,000 but again denied his request for an OR release. Because the court failed to consider his inability to pay, he was entitled to a new bail hearing.
The Supreme Court's review of the case is notable, given its history. In his initial appeal, Humphrey persuaded the Court of Appeals that the trial court's failure to consider his inability to pay was a constitutional violation.
The Court of Appeals remanded to the trial court, which deleted granted his pretrial release conditioned on the following:
- His participation in drug treatment,
- His submission to electronic monitoring, and
- The imposition of a stay-away order protecting the victim.
Several weeks after Humphrey's victory, however, several entities, including the San Francisco District Attorney's office, petitioned the Supreme Court to review the constitutionality of cash bail. The Supreme Court felt it was essential to guide future cases.
The Supreme Court's holdings were based on several interesting sociological findings. First, they highlighted studies finding that pretrial detention increases the defendant's risk of losing employment, housing, and child custody.
Mass pretrial detention imposes financial burdens on the taxpayers who have to pay to house and feed incarcerated defendants. They cited findings that the entire net growth in the U.S. jail population in the last twenty years is attributable to increasing pretrial rates rather than post-trial incarceration.
Further, they noted several disparities between California's treatment of pretrial defendants and that of other states. For example, defendants in large urban counties are detained pretrial at significantly higher rates than those in comparable counties in other states.
They speculated that this disparity might be due to the much higher cash amounts demanded in California. For instance, the median cash bail required to secure release in California is $50,000, compared with $10,000 in the rest of the United States.
Principles of Due Process
Finally, the Humphrey decision is significant, beyond its holdings, for the doctrinal hook employed by the California Supreme Court. They based their analysis on principles of due process and equal protection, focusing on the method by which cash bail is set and the failure to inquire into the defendant's ability to pay.
This analysis rejected the position of several county District Attorneys who urged that only the Eighth Amendment's specific bar on excessive bail could form the basis for Humphrey's relief.
Humphrey stands for the proposition that liberty is the norm, and detention before or without trial is the carefully limited exception.
It remains to be seen whether a careful, individualized determination of ability to pay and non-financial conditions of release does become available to all criminal defendants.
This case gives the defense bar a powerful argument supporting their indigent clients' request for pretrial release, where the prior practice of simply defaulting to the county bail schedule would have typically resulted in pretrial detention. Eisner Gorin LLP is a criminal defense law firm in Los Angeles, California.