By Macy Lu
SAN FRANCISCO – The California Supreme Court Tuesday held a long-anticipated oral argument to review criticisms surrounding monetary bail—as evoked by the Kenneth Humphrey appellate opinion in 2017—and maybe took a step toward eliminating cash bail in most cases in the state.
The oral argument was originally set for December 2019 before being pushed to February 2020 and finally January 5, 2021.
Charged May 2017 for robbing an elderly neighbor of $5 and a bottle of cologne, then threatening him, Humphrey has spent a year in jail on a whopping $600,000 bail. Though later reduced to $350,000, it was still a formidable figure for the then-64-year-old retired shipyard worker.
The fact that California judges at the time of Humphrey’s arrest were permitted to set bail at unaffordable costs without finding a defendant a proven threat to society accounted for the imbalance between the seriousness of Humphrey’s crime and the bail amount.
In January 2018, the California First District Court of Appeal found that California’s money bail system violated due process and equal protection sections of the California Constitution. The court required trial court judges to factor defendants’ financial capacities and non-monetary options for release when determining bail.
In August 26, 2020, the California Supreme Court granted precedential effect to Part III of the Humphrey appellate opinion, agreeing with the appellate court that judges should consider financial 
status when determining bail.
Tuesday’s virtual argument centered on three issues. First, should courts consider a criminal defendant’s ability to pay in setting or reviewing monetary bail? Second, should a trial court consider public and victim safety when setting bail? Third, under what circumstances does the California Constitution allow bail to be denied for non-capital cases?
While both parties addressed all three issues, their views primarily differed on the third issue involving the state constitution.
Deputy Solicitor General Joshua A. Klein opened the debate by presenting the Attorney General’s stance on each of these three issues.
Regarding the first issue, Klein stated that “the state can’t decide who to hold in custody and who to release until trial based on the defendant’s financial resources.”
On the second, he underscored that “raising a defendant’s bail amount is not an appropriate way to address concerns about dangerousness. The state cannot detain one defendant yet release another equally dangerous one based simply on which of the two has money to meet the increased bail amount.”
As for the third issue, Klein stated that Article I Section 28 of the California Constitution “as [2008 voters] amended it then is now the controlling state constitutional provision on bail release and detention.”
The “mechanism of setting a bail amount that some defendants can meet and others can’t…is effectively the detention of those who can’t meet it,” Klein explained, “like Mr. Humphrey’s own case illustrates.”
In other words, it unjustly detains the poor while offering the wealthy an escape portal.
During his argument, Klein identified two problems regarding bail increase. One is that it does not contribute to the purpose of bail setting “since it’s not forfeitable for new offenses,” meaning it does not incentivize lawful behavior.
Another problem is that bail increase does “not justify the differential treatment of two equally dangerous people,” with respect to their physical liberties prior to trial.
Nevertheless, the justices felt unsure how Klein meant for Section 28 to be applied, especially when a defendant’s ability to pay and public and victim safety conflicts.
To this, Klein simply emphasized that the court should consider a defendant’s ability to pay, refrain from setting bail higher than that threshold, and should not assign an unaffordable bail to detain a defendant–otherwise different defendants can be freed or detained based solely off their financial resources.
As to how “Section 12 interacts with Section 28” of Article I, he claimed that “Section 28’s multifactor test has effectively displaced what has previously been the categorical list of predicate crimes and circumstances exception under 12.”
Nevertheless, Justice Leondra R. Kruger was skeptical toward his response. “Is the multifactor analysis…sufficient to protect due process?” She wondered.
Klein pointed out that there are two aspects of due process—substantive and procedural.
Substantive interests, the notion that due process protects rights unrelated to procedure, Klein claimed, are protected by the federal due process clause prohibiting courts from punishing before conviction.
As for the procedural level, the burden is on the government to “prove its need for detention of a particular person.”
As Klein’s allotted speaking period concluded, Defense Attorney Daniel S. Volchok presented his case on the first two issues on behalf of Humphrey.
In addressing the first issue—whether courts should consider a defendant’s financial status in setting bail—Volchok asserted that one of the rights violated is “the right to not be detained based solely on the right of indigence.” Another right is the substantive due process right to pre-trial liberty.
He cited United States v. Salerno to justify the necessity of applying strict scrutiny—which requires a government to prove its actions are necessary—to a court’s decision on detainment.
“The government needs a very good reason to take away people’s freedom, just like it needs a good reason to restrict free speech, the right to bear arms, and other constitutional rights,” he said.
To the second question of whether a court should consider public safety when imposing bail, Volchok responded with a blunt “no.”
“Doing so fails even rational basis scrutiny under the equal protection clause,” he contended. However, that did not mean courts should never consider public safety when deciding whether a defendant should be detained and when deciding on non-monetary methods of release.
Volchok’s primary point was that it is ultimately detention, not bail, that protects the public and victim.
As his finishing statement, he reminded the court of Klein’s points that committing “a crime while out on money bail can’t be the basis for forfeiting bail” and that bail unfairly acts as an escape mechanism for the wealthy.
His partner, Defense Attorney Alec Karakatsanis, took the spotlight next to address the final issue: what constitutional provision governs the denial of bail in non-capital cases? To that question, Karakatsanis answered, “Section 12.”
In his opening statement, he opted to examine bail from a historical perspective, highlighting the fact that “California has had a right to bail since 1849.” Then, in 1982, “when voters were presented with competing propositions,” one limiting the absolute right to bail and one “getting rid of bail altogether,” voters chose the former with an impressive 82 percent of the votes, leading to the creation of Article I Section 12.
He discussed the seriousness of pre-trial detention, remarking that “the electorate understood in 1982 that…there are people walking around right now who might commit a crime, but our society does not allow us to arrest and detain them.
“The electorate decided only in circumstances of capital offenses, violent felonies, sexual felonies, or any felonies where a person poses a threat to someone else, those are the only circumstances where they can be detained. The cost of giving judges unfettered discretion to detain people is enormous.”
When Justice Mariano-Florentino Cuéllar asked if his interpretation of the California Constitution allows for the effects of Section 28 but does not “upend the rights of bail,” Karakatsanis confirmed that was correct.
Ultimately, at the “crux of the case,” according to Karakatsanis, was that “there is nothing inharmonious with Section 28 and Section 12. There is a very easy way to reconcile them.”
What Section 28 does not do is “set forth specific circumstances in which a person can be detained.” Courts can draw on Section 12, which does stipulate specific circumstances, to fill in the gap, he added.
The problem that concerned Karakatsanis was if “the court intentionally tries to detain someone in a case where they’re not eligible for detention under Article I Section 12.”
The case is still pending in the California Supreme Court.
Macy is a junior from Orange County, CA, studying Communications and English at UC Davis. She loves meeting people, reading books, and writing creatively.
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