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Bail in California

Bail in California

In California, the median bail is $50,000. That means a person pays a bail bondsman 10% ($5,000 dollars) just to be released from jail pending trial; which is not refundable. Nevertheless, they say in this country we’re all “innocent until proven guilty”.

California Supreme Court Recent Ruling on Bail

“The common practice of conditioning freedom solely on whether an arrestee can afford bail is unconstitutional.”

Setting bail beyond the ability of the defendant to pay constitutes a detention. Pretrial detention should be rare – release of the defendant should be the normal practice, with pretrial detention being the exception. “[D]etention is impermissible unless no less restrictive conditions of release can adequately vindicate the state’s compelling interests.” In re Humphrey (2021) Cal.5th [S247278].

The Original Proceedings in Humphrey

Kenneth Humphrey, 66 years old, was arrested May 23, 2017, for suspected first-degree residential robbery, burglary, inflicting injury on an elder adult, and theft.

The complaining witness, 79-year-old Elmer J., alleged Humphrey had followed him into his apartment, threatened to put a pillowcase over his head, and demanded money. Elmer claimed he told Humphrey he had no money, and Humphrey then took Elmer’s cell phone and threw it to the floor. Elmer told police he then handed $2 to Humphrey, and Humphrey took it and an additional $5 and a bottle of cologne from Elmer’s apartment. Elmer reported that before Humphrey left, Humphrey moved Elmer’s walker into the next room, out of Elmer’s reach.

At Humphrey’s arraignment, Humphrey pled Not Guilty and sought release on his own recognizance (i.e., release without bail, aka “O.R.”). He cited; his age, ties to the community, and financial status as justification. He also noted; the minimum value of the alleged stolen property, remoteness of his prior strike convictions (his most recent was 25 years ago), history of appearing for court-ordered appearances, and the general legal presumption of innocence. Humphrey additionally offered to abide by any potential court Order to stay away from Elmer J. pending the outcome of this case.

The prosecutor requested bail in the amount of $600,000.

The trial court denied Humphrey’s request for O.R. and set bail at $600,000. The court reasoned its decision was premised on “the seriousness of the crime, the vulnerability of the victim, as well as the recommendation from pretrial services.”

Humphrey filed a motion for a formal bail hearing. As an exhibit to his motion, Humphrey, who is African American, attached a 2013 study on San Francisco’s criminal justice system, which found that “Black adults in San Francisco are 11 times as likely as white adults to be booked into County Jail” prior to trial.

Humphrey also offered evidence he earned a high school diploma while incarcerated; and successfully completed a drug rehabilitation program, two years of a city college, and served as a mentor for young adults in the community following his last incarceration. Humphrey also argued he had been accepted into the residential substance abuse and mental health treatment program, which was scheduled to begin the day after the date of Humphrey’s bail hearing.

The court again denied Humphrey O.R., but this time reduced his bail to $350,000.

The Court of Appeal Proceedings in Humphrey

Humphrey filed a petition for writ of habeas corpus in the Court of Appeal — which succeeded. The Court of Appeal ruled no court may order pretrial detention unless it finds first:

(1) That “the arrestee has the financial ability to pay, but nonetheless failed to pay, the amount of bail the court finds reasonably necessary to protect compelling government interests”; or

(2) That “detention is necessary to protect the victim or public safety or ensure the defendant’s appearance, and there is clear and convincing evidence that no less restrictive alternative will reasonably vindicate those interests.”

The Court of Appeal made the original court redo Humphrey’s bail hearing, with the appropriate standards, and at such Humphrey was released on various non-financial conditions.

The California Supreme Court Proceedings in Humphrey

The California Supreme Court granted review on their own motion “to address the constitutionality of money bail as currently used in California, as well as the proper role of public and victim safety in making bail determinations.” The CA Supreme Court, it seems, wanted to set the record straight as to what the relevant standards for setting bail in a criminal case should be.

Some guidelines pronounced by the Supreme Court in Humphrey are:

  • “[T]he state’s interest in the bail context is not to punish — it is to ensure the defendant appears at court proceedings and to protect the victim, as well as the public, from further harm.”
  • “When making any bail determination, a superior court must undertake an individualized consideration of the relevant factors. These factors include the protection of the public as well as the victim, the seriousness of the charged offense, the arrestee’s previous criminal record and history of compliance with court orders, and the likelihood that the arrestee will appear at future court proceedings.”
  • “[C]ourts should consider whether nonfinancial conditions of release may reasonably protect the public and the victim or reasonably assure the arrestee’s presence at trial . . . Detention is impermissible unless no less restrictive conditions of release can adequately vindicate the state’s compelling interests.”
  • "If the court concludes that money bail is reasonably necessary, then the court must consider the individual arrestee’s ability to pay . . . and set bail at a level the arrestee can reasonably afford.”
  • “And if a court concludes that public or victim safety, or the arrestee’s appearance in court, cannot be reasonably assured if the arrestee is released, it may detain the arrestee only if it first finds, by clear and convincing evidence, that no nonfinancial condition of release can reasonably protect those interests.

An Interesting Fact:

In this Humphrey case, the California Supreme Court, citing a study, proclaimed that, “[E]ven when bail is technically allowed, the amount that must be posted is considerably higher in California, on average, than elsewhere. And not in a way that can plausibly be justified by the state’s higher cost of living: ‘The median bail amount in California ($50,000) is more than five times the median amount in the rest of the nation (less than $10,000).’ ”

Legal Presumption of Innocence Still Under Attack!

The Humphrey case does not adequately address the “Presumption of Innocence.”

The U.S. Supreme Court warned in Boyd v. the United States (1886) 116 U.S. 616, “Illegitimate and unconstitutional practices get their first footing . . . by silent approaches and slight deviations from legal modes of procedure.” In Boyd, the Court condemned invasions of personal liberty unless supported by “conviction” of a public offense. Stated differently, a person is not convicted once accused. If “Presumed Innocent” means anything, it should mean not being jailed prior to trial.

Nevertheless, every day people are arrested, and many kept in jail up until trial. Thus, although the Humphrey case is one step in the right direction, even Humphrey fails to adequately protect the “Presumption of Innocence” in that it still allows courts to incarcerate a person based merely on allegation without evidence.

In California, a person demanding a speedy trial can be held two to three days without charges (weekends and holidays don’t count), then 10 more days without a preliminary hearing, then 60 more days without a trial. Moreover, due to findings of “good cause”, and voluntary waivers of Speedy Trial Rights (often to retain appropriate counsel and/or prepare a sufficient defense) some defendants languish in jail for a year or longer awaiting jury trial.

In misdemeanor cases, a person has a right to O.R. release “unless the court makes a finding upon the record that [O.R.] release will not reasonably assure the appearance of the defendant as required.” In Re York (1995) 9 Cal.4th 1133. Nevertheless, sometimes such a finding is made, and typically without introduction of any actual evidence, and an accused misdemeanant left in jail 60+ days waiting for trial as a result.

If you have questions about Bail or Appealing a Bail decision, please contact our office and speak with our attorneys Ivan O.B. Morse or Ryan L. Smith at (888) 865-0741 for a free consultation.