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Conditioning Bail on Ability to Pay Is Unconstitutional
The following summary of the California Supreme Court’s ruling on In re Kenneth Humphrey is important to understand for three main points.
However, before presenting these points, it is fundamental that the reader first understand the factual background leading up to the California Supreme Court weighing in on this important case.
About This Article Briefly: The California Supreme Court has held that a judge, in setting bail, must not just consider a dollar amount as collateral that defendant will return to and appear in court. The judge must consider non-monetary alternative options such as electronic monitoring, classes, etc. and can only order pretrial confinement (no bail) when clear and convincing evidence shows that, if released, defendant poses a substantial public safety risk.
Mr. Humphrey, himself age 66, was arrested on May 23, 2017 for first degree residential robbery and burglary against an elderly victim, including injury on an elder adult, and misdemeanor theft from an elder adult (Penal Code §§ 211, 368(c), 368(d), 459, 667.9(a)). The criminal complaint that followed alleged that Humphrey had suffered four prior strike convictions (Penal Code §§ 667(b) – (i), 1170.12(a) – (d)) and four prior serious felony convictions (Penal Code § 667(a)(1)), all for robbery or attempted robbery.
The complaining witness, Elmer J., age 79, told police that Humphrey had followed him into his Fillmore District apartment in San Francisco, threatened to put a pillowcase over his head, and demanded money. When Elmer said he had no money, Humphrey took Elmer’s cell phone and threw it to the floor. After Elmer then handed over 2 dollars, Humphrey stole an additional $5 and a bottle of cologne. Before leaving, Humphrey moved the victims’ walker into the next room, out of reach.
At arraignment on May 31, 2017, Humphrey sought release on his own recognizance (OR) without any condition of money bail. He argued he had advanced age, family ties to the area and being a lifelong resident of San Francisco, his unemployment and financial condition. He also noted the minimum value of the property that he allegedly stole, the remoteness of his prior strike convictions (the most recent was 1992 when he was 41 years old), the lack of any arrests over the preceding 14 years, and his history of complying with court-ordered appearances.
CA Supreme Court San FranciscoThe prosecutor requested bail in the amount of $600,000 as recommended by the bail schedule, as well as a criminal protective order directing Humphrey to stay away from the victim.
The trial court judge denied Humphrey’s request for OR and set bail at $600,000.
Humphrey challenged this ruling by filing a motion for a formal bail hearing under Penal Code § 1270.2. The motion explained how Humphrey had successfully completed the Roads to Recovery drug rehabilitation program and earned a high school diploma while in custody in the San Francisco County Jail from 2005 to 2008. Humphrey also stated that he had been accepted into another residential substance abuse and mental health treatment program.
The trial court once again denied OR, but did find unusual circumstances warranting a reduction of bail to $350,000. The public defender cautioned that Humphrey was too poor “to make even $350,000 bail.”
Humphrey then filed a writ of habeas corpus to the Court of Appeal, arguing that requiring money bail as a condition of bail that is at an amount the accused cannot pay is nothing less than the functional equivalent of pretrial detention order, which can be justified only if the state establishes a compelling interest in detaining the accused and demonstrates that further detention is necessary to further that purpose. In re Humphrey (2018) 19 Cal.App.5th 1006, 1015.
The Court of Appeal granted habeas corpus relief, reversed the bail determination and directed the trial court to conduct a new bail hearing. In its opinion, the appellate court declared that principles of due process and equal protection “dictate that a court may not order pretrial detention unless it finds either that the defendant has the financial ability but failed to pay the amount of bail the courts find reasonably necessary to ensure his or her appearance at future court appearances ; or that no less restrictive nonfinancial conditions of release would be sufficient to protect the victim and the community.” Id. at 2026, see also id., at pp. 1041, 1045.
No party petitioned for review by the California Supreme Court. On remand, the trial court conducted a new bail hearing and ordered Humphrey released on various nonfinancial conditions, including electronic monitoring, an order to stay away from the victim and his residence and participation in a residential substance abuse treatment program for seniors.
A few weeks later, upon request by several entities, the California Supreme Court granted review on its own motion to address the constitutionality of money bail and the proper role of public and victim safety in making bail determinations.
In doing so, the California Supreme Court found three things, alluded to at the start of this article, but now more easily appreciated with context from the case history:
- Merit in Humphrey’s original claim that conditioning bail solely upon whether an arrestee can afford bail was unconstitutional. Other conditions of release – such as electronic monitoring, regular check-ins with a pretrial case manager, community housing or shelter, and drug and alcohol treatment – can in many cases protect public and victim safety.
- However, in certain narrow circumstances of great danger to public and victim safety, or to assure a suspect’s future appearance at trial, pretrial custody may be ordered if the People show by clear and convincing evidence that no condition short of detention could suffice and the insufficiency of less restrictive conditions to vindicate compelling government interests; and
- Allowing the government to detain an arrestee without such procedural protections would violate state and federal principles of equal protection and due process. We note for the reader that Humphrey was decided without any reliance upon Eighth Amendment cruel and unusual punishment analysis because pretrial release on bail is instead an equal protection and due process issue.
The citation for the California Supreme Court ruling discussed above is In re Kenneth Humphrey (2021) 11 Cal. 5th 135, 276 Cal. Rptr. 3d 232.
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