CrimPro – 10-1-2020

Bail: The Court must now consider a Defendant’s ability to pay

“[a]n arrestee’s pretrial liberty interest, protected under the due process clause, is ‘a fundamental interest second only to life itself in terms of constitutional importance.’”

In 2018, the California Court of Appeal issued an in depth and massive decision on bail:  In re Humphrey (2018) 19 Cal. App. 5th 1006.  The California Supreme Court granted review so the decision was no longer binding, but still persuasive.  On August 26, 2020, the California Supreme Court granted a request to give Section III of the opinion precedential effect.  All Courts must now consider a Defendant’s ability to pay in setting bail.

Normally I prefer to highlight more than one case, but this is such a major breakthrough on a number of levels with a lot of material.  It was huge in 2018, then it was swept up by the Supremes, and now a portion has been re-released as binding.  So many people sitting in jail awaiting their day in court, who simply cannot afford money bail, now have an opportunity to be released while their case is pending.  Let’s face it, most people sitting in jail unable to afford money bail end up striking a plea bargain and pleading guilty…sometimes to a crime or crimes that they did not commit.  If a guilty plea gets them out of jail now versus another month or more sitting in jail awaiting trial, it presents great incentive to just plead guilty and get out even if they did not commit the crime they are being accused of.  Maybe the tide is changing and giving people accused more freedom to choose what they do with their case instead of making that choice from a jail cell.

What does Section III say (See In re Humphrey 19 Cal. App. 5th 1006, 1041)?  “[A] defendant may not be imprisoned solely due to poverty and that rigorous procedural safeguards are necessary to assure the accuracy of determinations that an arrestee is dangerous and that detention is required due to the absence of less restrictive alternatives sufficient to protect the public.” Id.  Humphrey not only allows a Court to depart from the County bail schedule, it mandates it in cases where a defendant cannot afford bail and there are less restrictive alternatives sufficient to protect the public.

Humphrey sets the stage for a case by case analysis when considering bail:  “As this case demonstrates, however, unquestioning reliance upon the bail schedule 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, runs afoul of the requirements of due process for a decision that may result in pretrial detention. Once the trial court determines public and victim safety do not require pretrial detention and a defendant should be admitted to bail, the important financial inquiry is not the amount prescribed by the bail schedule but the amount necessary to secure the defendant’s appearance at trial or a court-ordered hearing.” Id. at 1044.  

Well, let’s face it, even in cases where we have a dangerous person being accused of an atrocious crime(s), in most cases they are still entitled bail.  They just end up with a higher money bail.  Yes, of course there are cases where bail may properly be denied all together. United States v. Salerno (1987) 481 U.S. 739, 752-755.  Where bail is not to be set at all (i.e., preventive detention) [e.g., Article I, sec. 12, paragraph (c), California Constitution], the government has to prove, by clear and convincing evidence, following a hearing, that “no condition or combination of conditions will reasonably assure the appearance of the person…and the safety of any other person and the community….” Id. at 742.

No longer is it the case where one merely looks at the bail schedule and pays X amount to get out of jail.  “In the present case, as we have said, the prosecution did not present any evidence, let alone clear and convincing evidence, to establish that ‘no condition or combination of conditions of release would ensure the safety of the community or any person’ (citations omitted), thereby justifying abridgment of petitioner’s liberty interest while awaiting trial.” Humphrey at 1045.

More Humphrey quotes outside of section III hopefully get the point across RE: Bail

“The liberty interest of the defendant, who is presumed innocent, is even greater; consequently, as will be further explained, it is particularly important that his or her liberty be abridged only to the degree necessary to serve a compelling governmental interest.” Id. at 1028.  The compelling government interest is having the accused appear at trial/hearings and also to protect the public.

“As the Court explained in Salerno, [supra,] 481 U.S. at 755, ‘liberty is the norm, and detention prior to trial or without trial is the carefully limited exception.’” Id. at 1035.  Only those cases where there is a preventative detention based on clear and convincing evidence at a hearing can there be no bail.  In all other cases, the accused is entitled to reasonable bail that is not violative of the 8th Amendment of the United States Constitution.

” As we shall describe, the principles underlying these cases dictate that a court may not order pretrial detention unless it finds either that the defendant has the financial ability but failed to pay the amount of bail the court finds reasonably necessary to ensure his or her appearance at future court proceedings; or that the defendant is unable to pay that amount and no less restrictive conditions of release would be sufficient to reasonably assure such appearance; or that no less restrictive nonfinancial conditions of release would be sufficient to protect the victim and community.” Id. at 1026.

“The practice of admission to bail, as it has evolved in Anglo-American law, is not a device for keeping persons in jail upon mere accusation until it is found convenient to give them a trial. On the contrary, the spirit of the procedure is to enable them to stay out of jail until a trial has found them guilty.” Id. at 1032.  Ahh, there it is again, the presumption of innocence, which is one of the principles this country was founded upon.  Too often in recent times has it flipped to guilty until proven innocent in the realm of public opinion, media and social media, which is a sad state of affairs.

“If the court concludes that an amount of bail the defendant is unable to pay is required to ensure his or her future court appearances, it may impose that amount only upon a determination by clear and convincing evidence that no less restrictive alternative will satisfy that purpose. We believe the clear and convincing standard of proof is the appropriate standard because an arrestee’s pretrial liberty interest, protected under the due process clause, is ‘a fundamental interest second only to life itself in terms of constitutional importance.’” (citations omitted)” Id. at 1037.

It is refreshing to know that it is not just people with money who can afford pretrial liberty and the presumption of innocence.  The bail schedule is certainly good as a baseline and is no longer the end all be all when it comes to pretrial detention and freedom.

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