Regular readers of this blog know that bail reform has been a hot topic in criminal law. Jessie has posted about the Criminal Justice Innovation Lab’s ongoing collaborations with several North Carolina jurisdictions in efforts to evaluate and improve bail practices, and she also has noted recent litigation over the constitutionality of the Alamance County bail system. Late last month, the Supreme Court of California ruled that money bail, when used, must be set at an amount an arrestee can reasonably afford unless there is clear and convincing evidence that no nonfinancial condition of release will reasonably protect victim or public safety or assure the arrestee’s appearance in court. This post takes a closer look at the opinion – In re Humphrey, No. S247278, 2021 WL 1134487 (Cal. Mar. 25, 2021).
Arrest & Bail Setting
Kenneth Humphrey was arrested on May 23, 2017 for robbery and burglary, among other offenses, based on an incident where Humphrey allegedly threatened and stole money from a man who lived in the same senior home as Humphrey. Humphrey previously had been convicted of robbery and attempted robbery, but had not been arrested in the preceding 14 years and had not been convicted of a serious felony since 1992. The trial court set bail at $600,000 in accordance with a county bail schedule, an amount that was unaffordable for Humphrey who was unemployed and had limited financial means. Thereafter Humphrey moved for a formal bail hearing where the court reduced bail to $350,000 because of Humphrey’s willingness to participate in a residential treatment program that would accept him the day following the hearing. Humphrey was unable to afford this reduced bail.
California Supreme Court
Following the bail hearing, Humphrey pursued habeas corpus relief in the California Court of Appeal and eventually was released by the trial court on nonfinancial conditions. No party sought relief from those proceedings but at the request of several entities, including the District Attorney of the City and County of San Francisco, the California Supreme Court granted review on its 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.” Slip Op. at 4. The specific issue garnering most of the court’s attention was whether principles of due process and equal protection require that a defendant’s ability to pay be considered when setting monetary bail.
Pretrial Detention and Money Bail Generally
The court began its discussion with a common observation about pretrial detention – that its disadvantages for a defendant are “immense and profound,” ranging from impairment of his or her ability to present a defense to heightened risk of losing a job, a home, or custody of a child. Id. The court also noted that remaining in pretrial detention may be associated with increased recidivism, and that the state bears the costs of housing and feeding arrestees who are not released. The fundamental disparity associated with “indiscriminate use” of money bail which was at the heart of the case, the court said, was that there were some people in California jails who posed little risk to public safety but could not afford bail while there were others, including some who may pose a risk to safety, who had been released as a simple result of their financial means. Slip Op. at 5.
Ability to Pay
As mentioned above, the court’s legal analysis largely focused on whether state and federal constitutional principles require consideration of a defendant’s ability to pay when setting monetary bail. The court specified that it was examining the method of determining bail through the lens of due process and equal protection and specifically was not addressing, as the claim was not made, that the bail set in Humphrey’s case was excessive under the Eighth Amendment. Slip Op. at fn.4. With regard to due process and equal protection, the court made no distinction between the federal and state constitutions as to the contours of those rights in the bail context and described them as providing “equal protection rights against wealth-based detention” and “substantive due process rights to pretrial liberty.” Slip Op. at 7.
The court considered the U.S. Supreme Court’s opinion in Bearden v. Georgia, 461 U.S. 660 (1983) where the Court held that in probation revocation proceedings for failure to pay a fine or restitution, fundamental fairness under a converged due process and equal protection analysis requires that the sentencing court inquire into the reasons for the failure and, in cases where the probationer is unable to pay despite bona fide efforts, consider alternate measures of punishment other than imprisonment. Finding parallels between Bearden and the case at hand, the court held that “[pretrial] detention is impermissible unless no less restrictive conditions of release can adequately vindicate the state’s compelling interests” in the defendant’s appearance at trial as well as victim and public safety. Slip Op. at 7. Because setting an unaffordable bail acts as the functional equivalent to a detention order, a constitutional bail determination necessarily requires a court to inquire into a defendant’s ability to pay. Id. at 7-8.
The court proceeded to “sketch the general framework governing bail determinations” in light of its announced requirement to consider ability to pay and less restrictive conditions when setting money bail:
In those cases where the arrestee poses little or no risk of flight or harm to others, the court may offer [own recognizance] release with appropriate conditions. Where the record reflects the risk of flight or a risk to public or victim safety, the court should consider whether nonfinancial conditions of release may reasonably protect the public and the victim or reasonably assure the arrestee’s presence at trial. If the court concludes that money bail is reasonably necessary, then the court must consider the individual arrestee’s ability to pay, along with the seriousness of the charged offense and the arrestee’s criminal record, and — unless there is a valid basis for detention — 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. Id. at 9.
The court stressed that in even in situations where the bail-setting court imposes an unaffordable bond after finding alternative conditions inadequate, the pretrial detention “must be consistent with state statutory and constitutional law specifically addressing bail . . . and due process.” Id. Because the case did not involve an order denying bail and was resolved with the court’s conclusion that the procedure for setting Humphrey’s bail was constitutionally inadequate, the court did not resolve significant open questions of California state law including the extent to which the state constitution authorizes or prohibits pretrial detention for certain noncapital arrestees, see Slip Op. at fn.7, or the determinations that must be made in cases where bail properly may be denied. See generally In re White, 463 P.3d 802, 814 (Cal. 2020) (also declining to reach the latter question; discussing categories of felony cases excepted from the state constitution’s explicit general right to bail).
Take Away for North Carolina
G.S. 15A-534(b) mandates imposition of a written promise, unsecured bond, or custody release except upon a determination that such release will not reasonably assure the defendant’s appearance, public safety, or the integrity of the judicial process and G.S. 15A-534(c) requires judicial officials to take the defendant’s financial resources into account when setting conditions of release. However, no North Carolina appellate case has held that judicial officials must make specific inquiry into the affordability of secured bonds. Decisions such as Humphrey and ODonnell v. Harris County, Texas, 882 F.3d 528 (5th Cir. 2018) suggest that courts are becoming increasingly skeptical of the constitutionality of bail systems that leave open the possibility of wealth-based detentions when there is no determination that detention is necessary. It also is important to note that much like the requirements announced in Humphrey, the federal court Consent Order and associated pretrial release policy in the Alamance County bail litigation requires, when a secured bond is authorized, that judicial officials make an individualized finding that the defendant can afford the amount specified or that pretrial detention is necessary because of clear and convincing evidence of the inadequacy of alternative conditions of release.