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.

On appeal, the arrestee was again joined by the Attorney General to argue that “conditioning freedom solely on whether an arrestee can afford bail is unconstitutional.”  The court found that an arrestee has a “fundamental constitutional right to liberty” that must be balanced against the state’s compelling interests in protecting public/victim safety and making sure the accused appears at court proceedings.  The court then held that,

[a]n arrestee may not be held in custody pending trial unless the court has made an individualized determination that (1) 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) detention is necessary to protect 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. . . Pretrial detention on victim and public safety grounds, subject to specific and reliable constitutional constraints, is a key element of our criminal justice system. Conditioning such detention on the arrestee’s financial resources, without ever assessing whether a defendant can meet those conditions or whether the state’s interests could be met by less restrictive alternatives, is not.