State Court Docket Watch: In Re Humphrey

On May 23, 2017, Kenneth Humphrey, a 66-year-old four-strike offender under California law,[1] followed a 79-year-old man “into his Fillmore District apartment in San Francisco, threatened to put a pillowcase over his head, and demanded money.”[2] Humphrey threw the elderly man’s cellphone to the ground when he claimed that he had no money. Upon this show of force, the victim acquiesced and handed over $2. Humphrey then stole another $5 and a bottle of cologne from the man. Prior to walking out the door, Humphrey placed the victim’s walker out of reach in another room.

Humphrey was subsequently apprehended and charged with “first degree residential robbery and burglary against an elderly victim, inflicting injury on an elder adult, and misdemeanor theft from an elder adult.”[3] At his May 31, 2017, arraignment, “Humphrey sought release on his own recognizance (OR) without any condition of money bail,” citing “his advanced age, his community ties as a lifelong resident of San Francisco, and his unemployment and financial condition.”[4] The prosecutor, however, requested $600,000 bail and an order of protection. The trial court granted the prosecution’s bail request and denied Humphrey’s application for release.

Humphrey appealed the trial court’s bail decision by requesting a formal bail hearing, which the court granted. At the bail hearing, the trial court found “unusual circumstances” warranting a reduction of bail from $600,000 to $350,000, but it again rejected Humphrey’s application for OR release.[5] In making its determination, the trial court considered the severity of the crimes charged, Humphrey’s prior criminal activity and propensity to engage in similar crimes, the threat Humphrey presented to public safety, and the risk of flight. The court also required Humphrey to participate in a residential treatment program for substance abuse. In reaching its decision, the trial court did not consider Humphrey’s inability to afford bail, or “whether nonfinancial conditions of release could meaningfully address public safety concerns or flight risk.”[6]

Humphrey again appealed the conditions of his pretrial detention, filing a writ of habeas corpus in the California Court of Appeal. The appellate court granted the writ, and a new bail hearing resulted in the trial court releasing Humphrey on various nonfinancial conditions, such as electronic monitoring and another residential treatment program for drug abuse.

None of the parties petitioned for review. Nevertheless, the San Francisco District Attorney’s Office requested that the California Supreme Court “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.”[7] On its own motion, the court granted review of these issues.[8]

Upon that review, the court held that “[t]he common practice of conditioning freedom solely on whether an arrestee can afford bail is unconstitutional,” and that “where a financial condition is nonetheless necessary, the court must consider the arrestee’s ability to pay the stated amount of bail—and may not effectively detain the arrestee ‘solely because’ the arrestee ‘lacked the resources’ to post bail.”[9]

Animated by the proposition that “liberty is the norm, and detention prior to trial or without trial is the carefully limited exception,” the court adopted the defendant’s framing of the issue as “whether it is constitutional to incarcerate a defendant solely because he lacks financial resources.”[10] In holding it is not, the court relied on the U.S. Supreme Court’s decision in Bearden v. Georgia.[11]

In Bearden, the defendant, who pleaded guilty to theft of stolen property and burglary, with a sentence of three years probation, was unable to satisfy a court-ordered fine and restitution after he lost his job. He informed the probation office that he could no longer afford to pay the fine and restitution on time. At his probation violation hearing, the court did not inquire as to his ability to pay and revoked his probation. Writing for the Court, Justice Sandra Day O’Connor explained, “if the State determines a fine or restitution to be the appropriate and adequate penalty for the crime, it may not thereafter imprison a person because he lacked the resources to pay it.”[12]

Bearden addressed whether the Fourteenth Amendment prohibits the state from revoking the probation of a post-conviction defendant for his inability to pay a fine and restitution. Humphrey, conversely, concerns a pretrial defendant’s ability to pay a given sum of cash bail. In appealing to Bearden’s rationale, the court rested its reliance upon its perception of “a theme” related to fundamental fairness in the context of indigent probationers.[13]

The court also offered another rationale for its decision: a cash bail amount that is patently unaffordable to an individual defendant is tantamount to remand or a pretrial detention order. In other words, “if a court does not consider an arrestee’s ability to pay, it cannot know whether requiring money bail in a particular amount is likely to operate as the functional equivalent of a pretrial detention order.”[14] And pretrial detention requires that the trial court find by “clear and convincing evidence” that “no less restrictive alternative will reasonably vindicate” California’s interest in victim and public safety.[15]

By these lights, then, pretrial custody that results from a defendant’s inability to pay the amount of bail that the court deems necessary “is impermissible unless no less restrictive conditions of release” can ensure public and victim safety.[16] This logic moved the court to extend the clear and convincing evidentiary standard to apply in cash bail determinations, effectively ensuring a court can only set cash bail beyond the defendant’s financial resources where pretrial detention is the only means to ensure victim and public safety and the defendant’s appearance in court.[17] 

Against this backdrop, the court distilled its new constitutional framework for bail decisions:

An 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.[18]

The court acknowledged that Humphrey’s “claim joins a ‘clear and growing movement’ that is reexamining the use of money bail as a means of pretrial detention.”[19] With the Humphrey decision, the California Supreme Court ratified the concerns of that movement.  

Note from the Editor: The Federalist Society takes no positions on particular legal and public policy matters. Any expressions of opinion are those of the author. We welcome responses to the views presented here. To join the debate, please email us at [email protected].