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The California Supreme Court Weighs In On Bail Reform

Money bail has become a hotly debated topic in California. Criminal defendants who cannot afford a fixed or “scheduled” bail amount remain in jail while charges are pending, but wealthier defendants with exactly the same charges can obtain their freedom. In 2016, Chief Justice Tani Cantil-Sakauye told the Legislature that it cannot continue to ignore “the question whether or not bail effectively serves its purpose, or does it in fact penalize the poor.” Since her comments, the Legislature has introduced SB 10 (the California Money Bail Reform Act of 2017) to “safely reduce the number of people detained pretrial, while addressing racial and economic disparities in the pretrial system, and to ensure that people are not held in pretrial detention simply because of their inability to afford money bail.” SB 10 is awaiting further action.

The California Supreme Court, on its own motion, has granted review of In re Humphrey (review granted May 24, 2018, S247278; superseded opinion at 19 CA5th 1006). The court ordered the following issues to be briefed and argued: (1) Did the court of appeal err in holding that principles of constitutional due process and equal protection require consideration of a criminal defendant’s ability to pay in setting or reviewing the amount of monetary bail? (2) In setting the amount of monetary bail, may a trial court consider public and victim safety? Must it do so? (3) Under what circumstances does the California Constitution permit bail to be denied in noncapital cases? Included is the question of what constitutional provision governs the denial of bail in noncapital cases (Cal Const art I, §12(b) and (c), or Cal Const art I, §28(f)(3)) or, in the alternative, whether these provisions may be reconciled.

On January 25, 2018, in In re Humphrey (2018) 19 CA5th 1006, the First District Court of Appeal addressed the unfairness of the money bail system, and the competing interests of ensuring attendance at court proceedings and public safety (see Pen C §1275). The court looked to Cal Const art I, §12, which mandates the granting of bail unless certain findings are made at a pretrial detention hearing. The exceptions to this rule are:

  • Capital cases;
  • Felony offenses involving acts of violence on another person, or felony sexual assault offenses on another person, when the facts are evident or the presumption great and the court finds based on clear and convincing evidence that there is a substantial likelihood the person's release would result in great bodily harm to others; or
  • Felony offenses when the facts are evident or the presumption great and the court finds based on clear and convincing evidence that the person has threatened another with great bodily harm and that there is a substantial likelihood that the person would carry out the threat if released.

See In re White (review granted May 23, 2018, S248125; opinion at 21 CA5th 18 to remain published and citable until further order).

In cases in which the court is not permitted to deny bail, due process requires that the defendant be released on his or her own recognizance, unless the court "finds either that the defendant has the financial ability but failed to pay the amount of bail the court finds reasonably necessary to ensure his or her appearance at future court proceedings; or that the defendant is unable to pay that amount and no less restrictive conditions of release would be sufficient to reasonably assure such appearance; or that no less restrictive nonfinancial conditions of release would be sufficient to protect the victim and community.” In re Humphrey, 19 CA5th at 1025.

The supreme court denied the request to depublish In re Humphrey, so under Cal Rules of Ct 8.1115(e)(1), the appellate opinion has potentially persuasive value, but no binding or precedential effect.

For more information, see California Criminal Law Procedure and Practice §§5.28, 5.34-5.35 (Cal CEB Annual) and California Criminal Law Forms Manual §5.2 (2d ed Cal CEB).