On January 25, 2018, the First District, Division One of the California Court of Appeal, issued a published opinion in In re Humphrey, 19 Cal. App. 5th 1006 (2018). The Court of Appeal found error in the Superior Court’s failure to consider an individual defendant’s ability to pay when it fixed bail as to the defendant. The Court concluded that the bail amount should not have been based solely on the bail schedule, absent clear and convincing evidence of risks to the safety of the victim and public.
Background
The defendant filed a writ of habeas corpus due to his detention pending trial for inability to post bail. He claimed that the Superior Court improperly failed to consider his inability to pay the bail amount set by the court and that it failed to consider other alternatives to bail, in violation of his Fourteenth Amendment due process and equal protection rights. Notably, he did not challenge the State’s money bail system as a whole, as facially unconstitutional.
He asserted that, because his fundamental constitutional right to liberty was impacted, the court had to demonstrate a compelling interest in his being detained, in that his inability to pay bail was the functional equivalent of no bail — since there was no finding by the court that a condition of release or some other non-monetary requirement could not equally satisfy the purposes of bail to assure his appearance at trial and protect public safety. He requested that the court order his release on his own recognizance or remand the matter to the Superior Court for a further hearing on bail.
The defendant was a 63-year-old retired shipyard laborer, who was charged with residential burglary of another elderly resident living in the same building. The defendant was alleged to have threatened the other resident and to have taken about $7 in cash and a bottle of cologne from him. At his arraignment, the defendant requested to be released on his own recognizance, based on his financial circumstances, his age, his long-time ties to the community, the minimal nature of the amount alleged to have been taken, and more than 14 years without a criminal record. He offered to stipulate to a stay-away order from the other resident. The Public Safety Assessment recommendation to the court was to set bail at $600,000, based on the bail schedule. The court acknowledged the mitigating factors argued by the defendant, but denied his request for release on his own recognizance or any supervised release, and initially set bail at the full recommended amount.
The defendant made a motion for a bail hearing. He claimed, under the Fourteenth Amendment, a right to an individualized determination as to release or bail. The motion cited studies and data suggesting that there was a racial disparity in bail determinations throughout the country, and asserted, in particular, that “’Black adults in San Francisco are 11 times as likely as White adults to be booked into County Jail’ prior to trial.” The motion also detailed the defendant’s troubled life as a teen and his successes and accomplishments over the years, including his fight with drug addiction. The defendant, however, acknowledged a recent drug use relapse. He further submitted evidence of acceptance into a six-month senior treatment home and program, effective the day after the bail hearing.
The prosecutor identified safety risks due to the nature of the offense, stealing from another elderly resident’s home, and the defendant’s continuing addiction. The Court of Appeal noted that “[t]he one-page form risk assessment report submitted to the court . . . provides no individualized explanation of its opaque risk assessment of petitioner and no information regarding the availability and potential for use of an unsecured bond, . . or supervised release programs involving features like required daily or periodic check-ins . . . drug testing, home detention, electronic monitoring, or other less restrictive release options.”
The Superior Court relied primarily on the nature of the crime alleged against the defendant and his past criminal history in denying the defendant release on his own recognizance. The court agreed that it had to find “unusual circumstances” in order to deviate from the bail schedule, and did find such circumstances due to the defendant’s willingness to go to treatment, but concluded that this finding only justified a reduction in the bail amount to $350,000.
Discussion
The Court of Appeal first performed a general analysis of the State’s bail process, noting that, the California Constitution gave “an absolute right to bail except in a narrow class of cases.’” (Cal. Const. art. I, § 12.) Further, the Constitution provides that “[t]he factors the court must consider in setting the amount of bail are ‘the seriousness of the offense charged, the previous criminal record of the defendant, and the probability of his or her appearing . . . .’” (Id.) In addition, the Court of Appeal noted that a court is required to consider public safety, particularly the safety of the victim. The Court concluded that the statutes implementing these constitutional provisions required a bail hearing and required consideration of similar factors. (Cal. Penal Code §§ 1268-1276.5.) The Court later discussed federal bail requirements and similar interests.
The parties agreed that due process and equal protection rights under the Fourteenth Amendment do “require the court to make two additional inquiries and findings before ordering release conditioned on the posting of money bail—whether the defendant has the financial ability to pay the amount of bail ordered and, if not, whether less restrictive conditions of bail are adequate to serve the government’s interests.” (Emphasis added.) These findings were not made by the Superior Court.
The Court of Appeal noted Supreme Court precedent establishing that careful consideration of the impacts of penalties is required as applied to indigents, so that there is a connection between the purpose and the penalty, taking into account alternatives to satisfy the purpose. (Bearden v. Georgia, 461 U.S. 660 (1983); United States v. Salerno, 481 U.S. 739 (1987).
The Court of Appeal observed that this line of cases establish that a “defendant may not be imprisoned solely because he or she is unable to make a payment” and that bail cannot be denied without a finding of no less restrictive alternative to assure appearance and public safety.
The Court concluded that the criminal defendant’s right to bail, and thus his liberty interest, can “be abridged only to the extent necessary to serve a compelling governmental interest.” Those interests are: “to prevent flight” and “protection of the public.” However, “courts must consider the person’s financial situation and alternative conditions of release when calculating what the person must pay to satisfy a particular state interest.”
The Court of Appeal emphasized that “[a] determination of ability to pay is critical in the bail context to guard against improper detention based only on financial resources.” It found that Penal Code Section 1270.1, which applied in these circumstances because of the charge of residential burglary, permitted release on the defendant’s own recognizance or based on a modified bail amount only where factors are considered, including the danger to public safety. However, a court was not required to consider if a defendant has the “ability to fulfill a financial condition of release.”
Based on the discussed principles of law, the Court of Appeal subsequently concluded that a court must “consider the defendant’s ability to pay and refrain from setting an amount so beyond the defendant’s means as to result in detention.” If an individual defendant is found to be unable to pay a bail amount, then a court “may impose that amount only upon a determination by clear and convincing evidence that no less restrictive alternative” will ensure that the defendant makes future appearances. Moreover, a court’s decision in such circumstances must be made in a statement identifying specific facts supporting the decision.
The Court of Appeal stated that a court cannot make general conclusions regarding a danger to the public or risk of flight. The findings made by a court as to a money bail amount must relate to the individual’s circumstances, including an evaluation of the person’s ability to pay.
The Court noted the general criticism of bail schedules, which it characterized as the “antithesis of the individualized inquiry required before a court can order pretrial detention.” However, the court did not “condemn the trial court’s consultation of the [bail] schedule,” and since the defendant had not made a general facial challenge to the State’s bail system, the court also did not preclude “the use of the San Francisco bail schedule” generally.
The Court generally recognized the usefulness of schedules and also noted that consultation with bail schedules was required in certain instances. However, the court found that the schedule could not be completely relied upon “without consideration of a defendant’s ability to pay, as well as other individualized factors bearing upon his or her dangerousness and/or risk of flight.” Importantly, the Court reiterated that, once a trial court finds that “public and victim safety does not require pretrial detention,” the court must consider the defendant’s financial circumstances in fixing an amount necessary to secure the defendant’s later appearances. Since the Superior Court did not conduct an “individualized inquiry” as to the defendant here, the Court held the set bail amount was improper, and that the defendant was entitled to a new hearing.
The Court noted that no evidence had been presented that no other condition of release or less restrictive alternative would ensure the safety of the community, and that there was no evidence that the defendant had previously failed to appear. There was also no evidence questioning the truth of the defendant’s financial status as an indigent.
Finally, the Court recognized the potentially significant burden to judicial resources imposed by the requirement for individualized determinations as to bail, but reiterated the significant liberty interests at stake for those who are “presumptively innocent persons.” The Court also emphasized the point with which it had begun its opinion that the Governor and Chief Justice had, for many years, called upon the Legislature to reform the bail system, for which it stated “legislation is desperately needed.”
HOW THIS AFFECTS YOUR AGENCY
As the Court of Appeal recognized in this opinion, the “default position in this state is to simply rely on the bail schedule.” Its opinion, however, changes the nature of how trial courts may impose pretrial bail – requiring that those courts must make findings about a particular defendant’s ability to pay money bail. If the defendant has insufficient funds or resources to pay a bail amount, the court must make “the findings necessary for a valid order of detention,” based upon “clear and convincing evidence that no less restrictive alternative will satisfy that purpose” for which bail is being imposed.
It is important to note that the Court of Appeal’s decision does not invalidate the state’s bail system, nor does it prevent reference or use altogether of the bail schedule. This decision also does not operate retrospectively to determinations already made by courts on other individuals’ bail amounts. It does open a potential pathway for pretrial detainees to challenge previously set bail amounts. However, since this was a decision only as to one individual’s right to a re-hearing on bail, even the general statements of constitutional rights in the opinion do not automatically invalidate past orders on other defendants’ bail.
Going forward, the Superior Courts will generally have to comply with this opinion – absent any conflicting authority on this point. Thus, judges will generally be required to make an individualized assessment of defendants’ financial circumstances in setting bail, where bail would serve to require pretrial detention due to inability to pay. You should consult your own legal adviser about the applicability of this opinion in your local courts or whether there is any conflicting authority with this opinion, which is beyond the scope of this analysis.
As always, if you wish to discuss this matter in greater detail, please feel free to contact us at (714) 446 – 1400 or via email at jrt@jones-mayer.com [for James Touchstone] or kmj@jones-mayer.com [for Krista MacNevin Jee].
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