State Supreme Court takes bail review case
The state Supreme Court on Wednesday granted a request by San Francisco District Attorney George Gascón to review California judges’ authority in how they set bail for pretrial defendants, setting aside an appellate ruling that mandated they consider a person’s financial status before requiring payment for release from jail.
The court will review the Jan. 25 appellate ruling in the San Francisco case of Kenneth Humphrey that gave new momentum to the campaign to overhaul a system in which judges usually set bail in fixed amounts based on the crimes charged and the defendant’s record.
“We’re pleased,” Gascón said. “I’ve made it very clear that I’m not a proponent of money bail. But getting rid of money bail doesn’t entail that we will never have pretrial detention. There are still some people that are going to be either a flight risk or dangerous, and what we have now is a state of the law that is unclear, and the standard in terms of dangerousness may be way too high.”
Critics, including the Supreme Court’s chief justice, Tani Cantil-Sakauye, say cash bail doesn’t promote public safety and is unfair to poor people, who under the system remain in jail while wealthier defendants charged with the same crimes can buy their freedom while awaiting trial.
Defenders of the system, including bail bond companies, say bail provides the best assurance that a defendant will show up to court. Bond companies post the full amount of a defendant’s bail in exchange for a 10 percent fee.
The appellate ruling upended the long-held practice of judges following a bail schedule to determine how much a defendant must pay to be released, and it has prompted judges to consider alternatives to incarceration, like supervised release.
Humphrey, a retired shipyard worker in San Francisco, was arrested in May 2017 and accused of following a 79-year-old neighbor into the man’s apartment, threatening to put a pillowcase over his head, demanding money, and stealing $5 and a bottle of cologne.
Humphrey’s lawyer said he was simply trying to collect a debt.
A judge initially set bail at $600,000, based on the charges and Humphrey’s record of felony convictions from 1992 and earlier. The judge later lowered the bail to $350,000, based on Humphrey’s willingness to undergo treatment for his longtime drug addiction, but he was still unable to pay and remained in jail.
In the January ruling, the First District Court of Appeal in San Francisco said the rules used to set Humphrey’s bail were unconstitutional.
“A defendant may not be imprisoned solely due to poverty,” Presiding Justice J. Anthony Kline said in a 3-0 decision that ordered a new bail hearing.
He also said a judge must determine how much bail Humphrey could afford and whether he could be released safely without bail. Before setting bail in unaffordable amounts, or denying it altogether, Kline said, a judge must determine by “clear and convincing evidence” that there is no other way to protect the public or to assure the defendant’s return to court.
The ruling set a new precedent for trial judges in California. According to jail records, judges in San Francisco and some other counties have released more defendants without bail in recent months, but prosecutors have also asked judges more often than they had in the past to hold defendants without bail.
Defendants are increasingly being released on conditions like ankle monitoring before their trails. The San Francisco Pretrial Diversion Project, a city-funded program tasked with supervising such defendants, has seen a spike in caseloads since the Humphrey decision and is seeking $1.78 million in funding for the next fiscal year to hire new caseworkers.
Humphrey, 64, was released from jail May 9 without having to post bail after agreeing to ankle monitoring and 24-hour home detention at a San Francisco drug and alcohol treatment program for seniors. Prosecutors had sought to hold him without bail until his trial, but Superior Court Judge Brendan Conroy found that he could be safely released.
Attorney General Xavier Becerra, a critic of the bail system, had represented the prosecution in Humphrey’s appeal but decided not to challenge the appellate ruling. However, San Francisco’s district attorney, Gascón, asked the state’s high court to review the case. He argued that the appeals court’s standard gave too little weight to the charges against a defendant and would allow some dangerous defendants to go free.
The Humphrey case has been one of several recent statewide efforts by reformers to unravel California’s cash bail system. Legislation pending in Sacramento — co-sponsored by Assemblyman Rob Bonta, DAlameda — would require judges to assess defendants individually and use supervised release and electronic monitoring instead of money bail in most cases.
The Supreme Court said it will consider specific questions: first, whether the appellate court was mistaken that a defendant’s ability to pay bail should be taken into consideration for due process and equal protection; second, whether a judge can consider public safety in setting the amount of bail; and third, whether the state Constitution allows bail to be denied altogether in a non-capital case.