Chipping away at cash bail in California

In re Humphrey (S247278) has been fully briefed and pending before the California Supreme Court for almost two years.  As a general rule, a published Court of Appeal opinion has “no binding or precedential effect” while review is pending (Calif. Rules of Court 8.1115(e)(1)).  The California Supreme Court, however, may so order otherwise (Calif. Rules of Court 8.1115(e)(3)).  As reported by Bob Egelko of the San Francisco Chronicle, last week, California Attorney General Xavier Becerra asked the court to utilize its authority to reclassify the Court of Appeal’s opinion as “binding and precedential” while the case is pending review.  Becerra claims that the issue of keeping people incarcerated due to “their inability to afford bail has become critically important because of ‘the unexpected change in circumstances caused by the unprecedented impacts of the novel coronavirus pandemic.'”

Kenneth 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 without financial conditions was denied by the trial court.  The Court of Appeal decision granted Humphrey a new bail hearing in which inquiry must be made on his ability to pay money bail.  If unable to pay money bail, non-monetary alternatives must be addressed. CJLF filed an amicus brief in the case that can be found here.

Also while Humphrey has been pending, the California Legislature passed, and former Governor Jerry Brown signed, SB 10, which abolished cash bail and instead requires a judge to make a pretrial risk assessment for all felony offenders. SB 10 divides them into three categories – low, medium, or high risk. Those charged with most misdemeanors are not assessed pretrial and are to be booked and released (For a more thorough evaluation of SB10, look here).    SB10, however, was put on hold when the bail industry gathered the required number of signatures for a referendum so that the voters can make the ultimate decision on whether cash bail should remain viable in California.  It will appear as Proposition 25 on the November 3, 2020 election ballot.

Earlier this year, San Francisco DA Chesa Boudin implemented his own version of SB10 when he eliminated cash bail in San Francisco.  In late March, the California Judicial Council established a zero bail policy in an effort to reduce the jail population so as to protect inmates from COVID. Its no surprise that the policy resulted in more crime.  The policy was rescinded in June.  Becerra’s request to make the Court of Appeal’s Humphrey opinion binding precedent is just another effort to chip away at cash bail in California before the election.