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Date: Jan. 2022
From: Harvard Law Review(Vol. 135, Issue 3)
Publisher: Harvard Law Review Association
Document Type: Case note
Length: 4,199 words
Lexile Measure: 2170L

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Criminal Law--Money Bail--California Supreme Court Holds Detention Solely Because of Inability to Pay Bail Unconstitutional.--In re Humphrey, 482 P.3d 1008 (Cal. 2021).

Across the nation, people are arrested and detained pretrial solely because they lack the money to pay bail. (1) Although many state constitutions grant individuals a right to be released on bail except in the most serious cases, "courts use unaffordable bail conditions to detain people deemed too dangerous or flight prone to release." (2) Recently, in In re Humphrey, (3) the Supreme Court of California held that detaining a person pretrial solely because they cannot afford bail violates due process and equal protection. (4) Consequently, California courts must consider ability to pay when setting bail, and courts cannot set unaffordable bail that would result in pretrial detention unless there is clear and convincing evidence that no other condition would reasonably protect the government's interests in public or victim safety or court appearance. (5) Humphrey provided a significant substantive protection for indigent persons who might otherwise be jailed because of their poverty. However, the decision left unresolved core questions about the role of public safety in California's bail scheme--a result that may limit the holding's practical impact on reducing the hardships posed by bail and pretrial detention in the State of California.

On May 23, 2017, sixty-three-year-old Kenneth Humphrey followed seventy-nine-year-old Elmer J. into his apartment in the senior home in which they both lived, threatened him, threw his phone to the ground, demanded money, and stole $7 and a bottle of cologne. (6) Humphrey was arrested for first-degree residential robbery and burglary against, injury of, and misdemeanor theft from an elder adult. (7) At his arraignment, Humphrey requested release on his own recognizance, (8) but at the prosecutor's request, (9) the trial court set a $600,000 money bail--without considering Humphrey's inability to pay that sum. (10) Humphrey filed a motion for a formal bail hearing to review the order. (11) At the hearing, the prosecutor argued that robbery is "a serious and violent felony," so the court would need to find "unusual circumstances" to deviate from the prescribed bail amount. (12) The prosecutor maintained that the high money bail was appropriate because Humphrey's substance abuse was "a great public safety risk" and the fact that Humphrey faced a lengthy sentence under California's three-strikes law made him a "flight risk." (13) The trial court found there were "public safety and flight risk concerns" and denied release on Humphrey's own recognizance or supervised release, but reduced bail to $350,000 on the condition that he participate in a substance abuse treatment program. (14) Humphrey appealed, filing a habeas corpus petition that argued that conditioning release on an amount of money bail that one cannot pay is "the functional equivalent of a pretrial detention order." (15)

The California Court of Appeal reversed and remanded the case for bail proceedings that would take into account Humphrey's ability to pay. (16) It noted that article I, section 12 of the California Constitution "establishes...

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Gale Document Number: GALE|A690097709