California Attorney General Xavier Becerra announced on Tuesday that his office will not appeal a state appellate court’s ruling in In re Kenneth Humphrey. Mr. Humphrey has been incarcerated since May 2017 while awaiting trial, because he is unable to afford the $350,000 bail set by the San Francisco Superior Court.
In a statement on Tuesday, the AG indicated, “The Court of Appeal’s decision is an important recognition of the critical need to reform our current bail system.”
He said, “We must continue to pursue changes in our bail system to ensure it’s rooted in principles of fairness and prioritizes public safety for all. As the Court notes, this is going to require legislative changes and additional resources.
“Decisions regarding who should remain in jail while awaiting trial should be based on their danger to the public, not dollars in their pocket. Bail determinations must keep Californians safe and ensure that a defendant shows up for trial. Bail determinations that do not consider whether a person awaiting trial can afford bail, and whether there are alternatives to incarceration that still preserve public safety, do not promote justice.”
In January, the First Appellate District Court, in noting new legislation, stated that “the prosecutor presented no evidence that non-monetary conditions of release could not sufficiently protect victim or public safety.” Despite this, they found that “the trial court found petitioner suitable for release on bail, the court’s order, by setting bail in an amount it was impossible for petitioner to pay, effectively constituted a sub rosa detention order lacking the due process protections constitutionally required to attend such an order.”
The court ruled that Mr. Humphrey was therefore “entitled to a new bail hearing at which the court inquires into and determines his ability to pay, considers nonmonetary alternatives to money bail, and, if it determines petitioner is unable to afford the amount of bail the court finds necessary, follows the procedures and makes the findings necessary for a valid order of detention.”
Bail has been subject to a recent fight for reform. Recently the governor of California declared in his State of the State Address that it was necessary for the legislature to reform the bail system, which he said constituted an unfair “tax on poor people in California.”
He said, “Thousands and thousands of people languish in the jails of this state even though they have been convicted of no crime. Their only crime is that they cannot make the bail that our present law requires.”
This was followed by Chief Justice Tani Cantil-Sakauye who, in her 2016 State of the Judiciary Address, told the Legislature it cannot continue to ignore “the question whether or not bail effectively serves its purpose, or does it in fact penalize the poor.”
The state legislature has also initiated action with SB 10 introduced in 2017. That measure remains before the legislature, but opens with the declaration that “modernization of the pretrial 
system is urgently needed in California, where thousands of individuals held in county jails across the state have not been convicted of a crime and are awaiting trial simply because they cannot afford to post money bail or pay a commercial bail bond company.”
Kenneth Humphrey is 63 years old and a lifelong resident of San Francisco. On May 23, San Francisco police responded to calls regarding a robbery, threatening a 79-year-old in his fourth floor apartment. Mr. Humphrey eventually stole $5 and a bottle of cologne and left.
At his initial arraignment hearing on May 31, Mr. Humphrey sought release on his own recognizance without financial conditions, based on his advanced age, his community ties as a lifelong resident of San Francisco and his unemployment and financial condition, as well as the minimal property loss he was charged with having caused, the age of the three alleged priors (the most recent of which was in 1992), the absence of a criminal record of any sort for more than 14 years, and his never previously having failed to appear at a court ordered proceeding.
The trial court denied Mr. Humphrey OR on the basis of his “lengthy history of contact here in the City and County of San Francisco” as well as the “seriousness of this crime” and “the vulnerability of the victim.”
He then filed for a bail hearing on July 10. The court noted there was no inquiry into other pretrial services or other available options other than incarceration.
In explaining its decision, the trial court stated that it had public safety concerns because “this was a serious crime and serious conduct involved and pretty extreme tactics employed by Mr. Humphrey, if I accept what is in the police report,” noting also that his offenses were similar to those he had committed in the past, “so that continuity is troubling to the court.” The court acknowledged that “maybe little was taken,” but said “that’s because the person whose home was invaded was poor [and] I’m not [going to] provide less protection to the poor than to the rich.”
Mr. Humphrey was detained prior to trial. He set forth the claim that bail “was set by the court without inquiry or findings concerning either his financial resources or the availability of a less restrictive non-monetary alternative condition or combination of conditions of release, petitioner maintains he was denied rights guaranteed by the Fourteenth Amendment.”
Attorney General Becerra originally asked the court to deny the petition, however, after the court issued an order to show cause, “the Attorney General filed a return withdrawing his earlier assertion that the magistrate was not obligated to make any additional inquiry into petitioner’s ability to pay under the circumstances of this case.”
The AG now “agrees with petitioner that a writ of habeas corpus should issue for the purpose of providing petitioner with a new bail hearing.”
As stated in the return: “The Department of Justice has determined that it will not defend any application of the bail law that does not take into consideration a person’s ability to pay, or alternative methods of ensuring a person’s appearance at trial. Given this determination, after further deliberations, we withdraw our earlier assertion that the magistrate was not obligated to make any additional inquiry into petitioner’s ability to pay under the circumstances of this case.”
The court believes that “the trial court erred in failing to inquire into petitioner’s financial circumstances and less restrictive alternatives to money bail, and that a writ of habeas corpus should therefore issue for the purpose of providing petitioner a new bail hearing.”
In making its ruling, the court attacked pre-determined bail schedules, noting they “provide standardized money bail amounts based on the offense charged and prior offenses, regardless of other characteristics of an individual defendant that bear on the risk he or she currently presents. These schedules, therefore, represent the antithesis of the individualized inquiry required before a court can order pretrial detention.”
They noted bail schedules are “based on inaccurate assumptions that defendants charged with more serious offenses are more likely to flee and reoffend, and as enabling the detention of poor defendants and release of wealthier ones who may pose greater risks.”
The court ruled, “Failure to consider a defendant’s ability to pay before setting money bail is one aspect of the fundamental requirement that decisions that may result in pretrial detention must be based on factors related to the individual defendant’s circumstances. This requirement is implicit in the principles we have discussed—that 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.”
—David M. Greenwald reporting
