SAN FRANCISCO (CN) — The California Supreme Court opened its 2021 session Tuesday with a long-awaited hearing on cash bail that will set the course for pretrial detention in California for years to come.
The case involves Kenneth Humphrey, a 66-year-old former shipyard worker who was arrested in 2017 on charges of stealing $7 and a bottle of cologne from his disabled 79 year-old neighbor. According to legal documents connected with the case, the neighbor said Humphrey followed him into his apartment and demanded money. Humphrey threatened to put a pillowcase over the neighbor’s head, prompting him to hand over $2. Humphrey then left, but not before swiping an additional $5 and a bottle of cologne.
His initial bail was set at $600,000, a figure so beyond Humphrey’s financial means that it was almost laughable. Weighing Humphrey’s criminal history and the circumstances of the case, San Francisco Superior Court Judge Joseph Quinn said he still believed a high bail amount was warranted and lowered the amount to a still unattainable $350,000.
In 2018, an appeals court ruled bail can only be used when there is no less restrictive way of ensuring a defendant’s future court appearances, and cannot be set without considering a defendant’s ability to pay. It also ordered a new bail hearing for Humphrey, who is now out of jail.
Having already ordered judges in 2020 to consider a defendant’s ability to pay, the high court turned its focus Tuesday to the constitutional questions of what factors demand pretrial detention and whether victims and public safety should get foremost consideration in bail decisions.
California Attorney General Xavier Becerra’s office believes the money bail system, as imposed on Humphrey and thousands of other indigent defendants, is inherently unfair.
“Courts may not set bail at an amount that an individual cannot afford,” attorney Joshua Klein with the California Department of Justice said Tuesday. “The state can’t decide who to hold in custody and who to release until trial based on the defendants’ financial resources.”
However, he also argued the California Constitution gives judges broad discretion when determining whether to hold a person in jail without bail.
Importantly, the initiative established that victims have the right “to have the safety of the victim and the victim’s family considered in fixing the amount of bail and release conditions for the defendant.”
The law also added provision (f)(3) which says in part: “In setting, reducing or denying bail, the judge or magistrate shall take into consideration the protection of the public, the safety of the victim, the seriousness of the offense charged, the previous criminal record of the defendant, and the probability of his or her appearing at the trial or hearing of the case. Public safety and the safety of the victim shall be the primary considerations.”
Klein said Section 28 should be the prevailing law, supplanting Section 12 of the Constitution, which not only guarantees the right to bail for every Californian but sets very limiting parameters for denying it. Only capital crimes or violent felonies, including sex offenses, are listed under exceptions to bail.
“Section 28 is now the controlling state constitutional provision on bail release and detention,” Klein said. “If the public safety cannot be assured, then the court has a straightforward path which is to protect those by detaining the defendant under 28 (f)(3).”
But some of the justices said they were concerned about erasing an entire swath of constitutional law.
“I’m wondering why all the effort?” asked Justice Joshua Groban, who observed that Section 12 outlines several categories of crimes that would take pretrial release off the table.
“Why isn’t that enough? Is there some threat to public safety? Is there some broad category of dangerous detainees that wouldn’t be covered by Section 12 such that it compels the attorney general to make this complicated argument?”
Klein said voters probably thought Section 12 was inadequate, given the possibility some detainees could “slip through the cracks.” For example, he said, someone could be arrested for violating a domestic violence restraining order, which is not covered by the conditions under the pretrial detention conditions of Section 12.
“That is a defendant who has shown a real unwillingness to obey court orders and a defendant whom the voters may have thought a judge should be able to look at and say ‘this is not a person who can be safely released,’” he said.
Justice Mariano-Florentino Cuéllar asked how much of Section 12 survives under the state’s interpretation.
“There is still right to release of some sort under the California Constitution, and if bail is one of the mechanisms that can make release possible, then the court may have to consider that as a way to release a defendant,” Klein said. “But there is not the absolute right to bail even if a defendant cannot afford it.”
Opposing counsel argued the government has a very heavy burden to justify stripping someone of their right to release on bail.
“We are talking about locking up presumptively innocent people, keeping those people from their homes, their jobs, their children or other family members, exposing them to violence in jail, to unsanitary conditions, to diseases or viruses like Covid,” said attorney Daniel Volchok.
“From a constitutional standpoint, it is essential to a free society that the the government cannot just throw people in jail and inflict all of these harms because it wants to. The government needs a very good reason to take away people’s freedom.”
Civil rights attorney Alec Karakatsanis said California voters never intended to get rid of a right going back to 1849. “The stakes of this are enormous. If the court adopts the attorney general’s view, it’s likely that hundreds of thousands of additional people will be detained prior to trial.”
Justice Martin Jenkins, making his debut on the bench Tuesday, asked Karakatsanis if there are aspects of Section 28’s “Victims Bill of Rights” that revealed voter intent to give judges greater authority over preventative detentions.
“Isn’t that some evidence of voter intent to expand and provide courts and judges with other bases for considering detention issues?” he asked.
But Karakatsanis said the initiative said nothing about appealing the right to bail as outlined in Section 12.
“The attorney general’s argument is that California voters can fundamentally change their relationship with their government so much that they give judges discretion to detain anyone in any case for any crime, that they can do that implicitly without anyone ever telling them that.
“The voters of California, for 170 years, have determined the right of individual liberty goes further than the federal constitution. They don’t permit a judge, whether transparently issuing an order of detention or nontransparently saying ‘I’m going to set a $1 trillion money bond.’ They don’t permit a person to be detained.”
Karakatsanis said the court can adopt Section 28 as the prevailing law in California, while preserving the absolute right to bail. The tension comes in when a judge tries to detain someone for a nonviolent felony offense by setting astronomically high bail.
“If Steve Jobs were a defendant and a judge wanted to detain him, he might set a $30 trillion money bond. We don’t think there’s necessarily an equal protection problem with that, if the court takes the right findings that detention is absolutely necessary,” he said. “The problem comes in when a court is intentionally trying to detain someone in a case that is not eligible for detention under Article 1, Section 12.
So if Steve Jobs were charged with nonviolent, nonsexual crime and is not charged with a felony where he’s made a threat against someone, the voters have said every time they’ve been asked, ‘That person cannot be detained. We cannot achieve zero risk but the right to individual liberty is too important.’”
The justices took the case under submission and will issue a ruling in 90 days.