Monthly Archive: March 2021

“Affordable Bail” Does Not Protect Public and Victim Safety

If an arrestee can be “admitted to bail,” (meaning pretrial release is not precluded), California law authorizes four different methods of pretrial release, only one of which has a monetary requirement. Those four methods include (1) money bail; (2) release on own recognizance (“OR”); (3) OR under supervision; and (4) pretrial diversion. At an arrestee’s first court appearance, a judge will decide if he or she should be released on OR (with or without supervision) or on money bail.

The California Supreme Court’s Humphrey decision announced yesterday initially acknowledged OR as a type of pretrial release, but then they completely ignored it as they delved right into the unconstitutional disparities of money bail. The court also glossed over the fact that Humphrey requested OR release under supervision twice and was denied twice. The trial court denied his request for OR release due to the seriousness of the crimes committed (first-degree residential robbery, first-degree residential burglary, inflicting non-great bodily injury on an elder or dependent adult, and theft from an elder or dependent adult PLUS three prior strikes), the vulnerability of the victim (a 79-year-old man), and on the recommendation against OR release from pretrial service’s Public Safety Assessment Report. In addition to public safety concerns, the trial court was also concerned that Humphrey was a “flight risk.”

What is OR release? Had the court taken the time to examine it in a bit more detail, the public would better understand that it is a discretionary non-monetary alternative to cash bail contained in Article I, section 12 of the California Constitution. Continue reading . . .

Press Coverage on CA Supreme Court’s Bail Ruling

Media coverage of yesterday’s unanimous the California Supreme Court ruling in In re Humphrey, mostly applauded the court’s holding that the Constitution requires judges to consider a suspect’s “ability to pay” when deciding if he can be released on bail.  The Associated Press story by Don Thompson was picked up not only by most California newspapers and broadcasters,  but by the Miami Herald,  U.S. News, the The Chicago Tribune,  The Baltimore Sun, NBC News and many more.   The ruling was characterized as “landmark” because the court added a requirement to the decision to set bail, not provided under state law, noting that setting a bail amount the suspect cannot afford “accords insufficient respect to the arrestee’s crucial state and federal equal protection rights against wealth-based detention as well as the arrestee’s state and federal substantive due process rights to pretrial liberty” (emphasis added).

Continue reading . . .

CJLF and Cal. AGs

The Associated Press has this article on Gov. Newsom’s nomination of Rob Bonta to fill the Attorney General vacancy.

Kent Scheidegger, legal director of the Criminal Justice Legal Foundation that has typically opposed previous Democratic attorneys general, said Bonta is “fully on board with the fundamentally wrong direction that California criminal justice has been taking in recent years.”

I appreciate the quote, but the description of CJLF’s relationship with past attorneys general is not correct. Continue reading . . .

A Second Amendment Case Ready for Cert?

Kent noted yesterday a split Ninth Circuit en banc decision that upholds Hawaii’s very strict gun control law.  The percolating Second Amendment question out in the country is whether and under what conditions a law-abiding citizen can legally carry a gun for self-defense outside his home.  The Hawaii case might very well prove to be grist for that mill, but there is another case in the pipeline that might get there first.  My friend Prof. Josh Blackman has the story.

Continue reading . . .

Courts Must Consider an Arrestee’s Ability to Pay Money Bail in California

This morning the California Supreme Court held that trial courts must consider an arrestee’s ability to pay when setting the amount of money bail in the case of In re Humphrey (S247278).

Humphrey, a repeat offender, was charged with robbery and burglary. Bail was initially set at $600,000, then later reduced to $350,000.  Humphrey’s request for pretrial release on his own recognizance (“OR”) without financial conditions was denied because the trial court found he was a danger to public safety and a “flight risk.”  Humphrey was unable to post bail and remained detained pretrial.  Humphrey filed a petition for a writ of habeas corpus, arguing that the trial court’s failure to inquire into his financial circumstances and to not consider less restrictive alternatives to money bail was a violation of his constitutional rights.  The California Attorney General initially opposed Humphrey’s position.  However, the AG later changed his position and agreed that Humphrey was entitled to a new bail hearing stating that he would “no longer defend ‘any application of the bail law that does not take into consideration a person’s ability to pay, or alternative methods of ensuring a person’s appearance at trial.'”    CJLF filed a brief (found here) arguing that public and victim safety, and whether the arrestee is considered a “flight risk,” are the primary considerations to be evaluated by a court when initially deciding whether an arrestee is eligible for pretrial release, and, if eligible, what type of pretrial release is appropriate under the circumstances—money bail or release on OR without financial conditions.  It was CJLF’s position that to release Humphrey on an amount that he could afford, or on other less restrictive alternatives, would essentially permit his release on his OR, which is contrary to the trial court’s findings regarding his danger to victim and public safety. Continue reading . . .

Covid-19 and Economic Hardship are not Responsible for Spike in Murder Rates

A blog post by Hans Bader of Liberty Unyielding presents a comparison between the United States and Latin America in response to the notion that the rise in homicide rates in 2020 is a result of the pandemic and citizens being desperate for means to support themselves. Bader notes, “In reality, murder rates fell in much of the world during the pandemic. People’s situation was far more desperate in Latin America, where the pandemic left many people without adequate food, yet murder did not increase in many Latin American nations.”  While in the United States homicides greatly increased in many major cities.

Continue reading . . .

Newsom Appoints New California Attorney General

California Governor Gavin Newsom has filled the Attorney General’s seat left open after Xavier Becerra’s confirmation as federal HHS Secretary with Oakland Assemblyman Rob Bonta.  According to Wikipedia, Bonta joined a San Francisco law firm after graduating from Yale Law School and worked with the ACLU to develop anti-racial profiling restrictions for the California Highway Patrol.  He also served as a Deputy City Attorney of San Francisco and spent one year on the Alameda City Council before his election to the state Assembly.   Paul Rogers and Robert Salonga of the Mercury News report that Assemblyman Bonta co-authored SB 10, a bill signed in 2018 by Governor Jerry Brown which abolished cash bail in California.  State voters adopted a referendum to reject that law at the 2020 general election by over 56%.  In announcing Bonta’s appointment Governor Newsom told reporters, “Rob has become a national leader in the fight to repair our justice system and defend the rights of every Californian.”  What this means with regard protecting the public from criminals, which is supposed to be the Attorney General’s job, is anybody’s guess.

Supreme Court Holds Shooting a Fleeing Suspect is a “Seizure”

The U.S. Supreme Court held today that a police officer “seizes” a fleeing suspect, within the meaning of the Fourth Amendment, by shooting her, even if the officer never gains actual control and the suspect escapes.

The Court split 5-3* in the case of Torres v. Madrid, No. 19-292.

The opinion of the Court by Chief Justice Roberts applied the common law definition of when a person has been “arrested” to the Fourth Amendment question of when the protection against unreasonable seizures comes into play when the claimed seizure is of the person. The status of arrest had a variety of legal consequences, including liability of the officer for escape or a tort suit for false imprisonment. Continue reading . . .