By David M. Greenwald
Sacramento, CA – In March, the California Supreme Court came down with a landmark decision that will change the way trial courts handle bail.
“The common practice of conditioning freedom solely on whether an arrestee can afford bail is unconstitutional,” a unanimous Supreme Court ruled.
“What we hold is that where a financial condition is nonetheless necessary, the court must consider the arrestee’s ability to pay the stated amount of bail — and may not effectively detain the arrestee ‘solely because’ the arrestee ‘lacked the resources’ to post bail” the court writes.
Critical to their ruling was the fact that the circumstances for no-bail be unusual.
They acknowledge, “In unusual circumstances, the need to protect community safety may conflict with the arrestee’s fundamental right to pretrial liberty.” Under those conditions, “In order to detain an arrestee under those circumstances, a court must first find by clear and convincing evidence that no condition short of detention could suffice and then ensure the detention otherwise complies with statutory and constitutional requirements.”
But such detention does not depend on financial condition, rather on the “insufficiency of less restrictive conditions to vindicate compelling government interests.”
However, a sampling from a week in court in Sacramento shows that this is not how judges are operating. While we looked at Sacramento, Sacramento is no different than other courts.
Ned Meiners reported on a case out of Sacramento:
“When Cassandra Pajibo arrived at her bail hearing in Sacramento County Superior Court on Monday morning her bail was set at $50,000—when the hearing was over, she was held without bail and no chance of being released to await trial out of custody.
“The judge, Michael Bowman, spoke at length on In re Humphrey, a recent California Supreme Court decision which ruled that courts must take into account a defendant’s ability to pay when setting bail. While the decision means fewer defendants will be held in jail due to exorbitant bail amounts, it could lead to more individuals who are deemed a threat to public safety being held without bail.”
The judge, in this case, revoked bail.
“Ultimately, it was up to the prosecution to present clear and convincing evidence that the defendant was a threat to the public or the victim’ safety. Judge Bowman found the evidence compelling 
and Pajibo’s bail, which had been $50,000, was revoked entirely.”
Sophia Barberini reports, “Sacramento County Superior Court Judge Timothy Frawley last Friday attempted to revoke the bail of defendant David Jackson, citing convictions from 25 years ago and asserting, ‘I can set a bail that he probably won’t be able to make.’
“The offense occurred while the defendant was on post-release community supervision (PRCS) and bail was initially set at $1 million.
“Assistant Public Defender Timothy Douglass filed a Humphrey motion in an attempt to have the defendant released on his own recognizance (OR), so that he may enter a drug treatment program, noting that repeated prison sentences are not working for Jackson, so maybe a drug program will work.”
Finally, Dorrin Akbari reported that the judge in the case she covered when pushed on Humphrey simply denied bail altogether.
“An attempt by co-counsel Jennifer Mouzis and Tatiana Cottman to have their client released on his own recognizance via a Humphrey motion (requiring reasonable bail) backfired Monday, as Judge Geoffrey Goodman found cause to deny bail altogether.”
“Leading the arguments for the defense, Mouzis noted that she had made a motion the prior week to have her client released on his own recognizance ‘subject to other conditions not including money bail’ because Chipman had no assets.”
Deputy District Attorney Lauren Weiss expressed skepticism regarding the claim that the defendant had no assets, given that Mouzis was being paid to represent him.
She then emphasized the violent nature of the defendant’s criminal history, which included a prior strike in 2014, and cited that as grounds for keeping Chipman in custody in the “interest of public safety.””
In those examples, a key question is whether the courts are adhering to the spirit of the Humphrey ruling which seems to set the bar pretty high for detaining defendants pre-trial, but in practice the judges seem to be erring on the side of detention rather than less restrictive measures.
The court in Humphrey provided guidance for judges in making the determination as to whether to release someone pretrial on their own recognizance. These include: articulable threat to an individual community, the seriousness of the charge, the arrestees previous criminal record, and what’s their history complying with court orders and likelihood that they will appear at future hearings.
“Principles of due process and equal protection dictate the court may not order pretrial detention unless it finds either that the defendant has a financial ability to pay and has failed to pay the amount of bail, the court finds it reasonably necessary to ensure his or her appearance to future court proceedings, or the defendant is unable to pay that amount and no less restrictive conditions of release would be sufficient to reasonably assure such appearance,” the court ruled, or the individual simply represented a safety threat and no less restrictive conditions would protect the public.
The court ruled that it would be “rare conditions” where someone would be held in custody on a no bail status.
Since the decision by court, the defense bar has filed a series of “Humphrey Motions” and, in many cases, the court is finding that the individuals pose a risk to the community or an individual and are using that to hold the defendant in custody on a no bail basis.
Jennifer Mouzis told the Vanguard, “My reading of the Supreme Court decision In re: Humphrey is that the Supreme Court made it very clear that they want individuals who are pending charges to be released from custody whenever possible, by that I mean whenever the court can pose conditions or a combination of conditions that can keep the public safe and assure the individuals attendance at future court proceedings.”
She explained, “It appears to me that the Humphrey Court made that particularly clear and indicated that it would be the extraordinarily rare case where pretrial incarceration would be required. However, it is my experience that when requesting bail on behalf of my clients under re: Humphrey as well as my observation of others requesting bail review pursuant to re: Humphrey that courts are more often than not holding individuals in custody without bail rather than attempting to release them with conditions that are designed to make the community safe, assure the individual’s attendance in court and allow that individual out pending the adjudication of their case.
“In doing so, I don’t believe that those decisions (follow) the holding In re: Humphrey and that concerns me,” she said.
—David M. Greenwald reporting
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