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Bail Or Jail? Calif. Justices May Reshape Detention Decisions

By Cara Bayles | December 16, 2018, 8:02 PM EST

In 2017, 63-year-old Kenneth Humphrey allegedly followed an elderly neighbor into his apartment, threatened to suffocate him with a pillowcase if he didn't cough up some money, then stole $5 and a bottle of cologne, and left.

That small-time burglary has evolved into landmark litigation over California's bail policy. Now the state's Supreme Court will decide how often a court can deny bail and detain a defendant. It will also decide whether to uphold a mandate that judges consider a defendant's ability to pay at arraignment — a determination that could be moot, depending on the status of a new law that may nix money from the arraignment process.

At his bail hearing, Humphrey's public defender argued while the charge marked his client's third strike, he hadn't committed a crime in 25 years. Humphrey, who'd struggled with drug addiction since he was a teenager, had also been accepted to a treatment program for seniors. The judge, citing public safety and flight risk concerns, eventually lowered the bail to $350,000, a cost that still doomed the indigent offender to sit in San Francisco County Jail.

That violated Humphrey's due process and equal protection rights under the 14th Amendment, California's First District Court of Appeal found. Its January order ruled that at arraignment, trial courts must "mak[e] findings regarding petitioner's ability to pay and alternatives to money bail" to comply with the U.S. Constitution.

The decision led not only to Humphrey’s renewed hearing and his release with an ankle monitor to residential rehab, but also to judges statewide considering defendants' ability to pay at bail hearings.

The California Supreme Court took up the case in May, after the San Francisco District Attorney's Office asked it to review the ruling. Yet it wasn't interested in challenging financial considerations at bail hearings, which it called "necessary to satisfy due process and equal protection" in its opening brief.

Instead, District Attorney George Gascón asked the court to clarify an issue "left open" by the lower court: What to do with "individuals whose risk is so high, detention remains necessary to protect public safety." Gascón said if the high court rules in his favor, it would "ensure we move away from money bail safely."

The case hinges on two state laws on pretrial detention. The first, Section 12 of the California Constitution, has for decades ensured a defendant's right to be released on bail, except in death penalty cases and charges involving violent felonies or threats of violence. The second, Section 28, was passed by a ballot question known as Marsy's Law 10 years ago. It established victim safety as a primary consideration in detention hearings.

The question before the high court now is which trumps the other.

The San Francisco District Attorney's Office argues the more recent law is controlling, and that public safety is always a valid reason to detain defendants. Doing so would ensure the equal protection that propped up the accused's rights to affordable bail also extends to a crime victim, according to the DA.

"A high amount of bail does not uniformly protect safety: a dangerous but indigent defendant will be incarcerated, but an equally dangerous but wealthy defendant can purchase his freedom," the opening brief said. "A court, however, need not resort to bail to ensure the safety of victims and the community. Other constitutionally sound mechanisms found within Sections 12 and 28 allow courts to deny bail in noncapital cases and preventatively detain dangerous defendants."

A spokesman for the DA's office declined to comment on the record about pending litigation.

The San Francisco Public Defender's Office countered that Section 28 only applies to death penalty cases, violent felonies and serious threats of violence — the crimes deemed carveouts to the right to bail under Section 12. Otherwise, the Marsy's Law referendum would have nixed the right to bail ensured by Section 12 altogether, according to Chesa Boudin, a deputy public defender who represents Humphrey.

"If voters are going to repeal a long-standing constitutional right, you have to tell them that's what they're doing," he told Law360. "There was virtually no reference to bail or pretrial release anywhere in the ballot material."

The case has drawn a slew of outside participants, many seeking to relitigate the ability-to-pay considerations.

Crime Victims United, a nonprofit organization that supports law enforcement and the victims of violent crimes, called the lower court's constitutional finding on defendant finances a "straw man," because the trial court could have detained Humphrey whether he could pay or not. The appeals court used that finding to rule on a constitutional question it need not decide, the group said.

The bar associations of San Francisco, Los Angeles and Santa Clara counties also weighed in, siding with Humphrey and contending that the U.S. Supreme Court has held that courts couldn't detain defendants accused of nonviolent crimes. The bar associations also argued policies that ignore a defendant's ability to pay flout the public interest, penalize the poor and are the reason that 64 percent of California's jail population has not been found guilty of a crime, but is merely awaiting trial.

But the future ruling by California's high court is unlikely to affect the mandate that judges consider a defendant's ability to pay, since both sides agree that's a constitutionally protected right.

Boudin said that if his side were to lose on the question of how to reconcile Sections 12 and 28, "that would mean judges can detain anyone they want, but can only do so after making the factual determinations and procedural considerations protected by the federal Constitution."

The ability-to-pay mandate seems relatively uncontroversial, with even industry groups like the Golden State Bail Agents Association voicing support for the requirement, saying it was preferable to an "unconstitutional" law the state legislature recently passed.

That law, Senate Bill 10, would end cash bail in California and replace monetary considerations with risk assessments. A challenge by the bail industry means the new law will likely be on hold until 2020, when it can go before voters as a ballot question.

If the referendum passes, it would render moot the Court of Appeal's mandate that judges consider defendants' ability to pay, according to both sides' briefs to the California Supreme Court. But the question before the high court could affect how frequently defendants are deemed dangerous and detainable, no matter what happens with the cash bail bill, both sides say.

"If anything, this court's ruling ... will shape how SB 10 should be understood, not the other way around," the San Francisco Public Defender's Office told the court.

Have a story idea for Access to Justice? Reach us at accesstojustice@law360.com.

--Editing by Katherine Rautenberg.