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.
Eisner Gorin LLP is a top-rated criminal defense law firm located in Los Angeles County with two office locations. We serve people throughout Southern California.
Our lawyers are California State Bar Certified Criminal Law Specialists.
You can reach us for an initial consultation by calling (310) 328-3776, or by filling out our contact form.