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.
At the heart of the case is Article 1, Section 28 of the state constitution, amended in 2008 by voters through Proposition 9, also known as Marsy’s Law.
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.