On March 25th, 2021, the Supreme Court of California pronounced its decision regarding the petitioner Kenneth Humphrey’s case (S247278). It had focused on two crucial questions about bail; whether cash bail is unconstitutional and what is the modus operandi to resolve two contradicting California Constitution provisions about bail. The court held that pre-trial detention based on the accused inability to pay is unconstitutional because freedom of liberty and right to bail is the fundamental right except for reasonable restrictions imposed by the California Constitution. Moreover, the precedent did not categorically hold money bail to be unconstitutional. However, money bail is lawful, but it must be set an amount within the defendant ability to pay in addition courts must consider the circumstances of the particular case.
Facts of the case
The petitioner Kenneth Humphrey filed the petition in the Supreme Court of California as the trial court failed to consider Humphrey’s ability to afford $350,000 for his bail. He was incarcerated for the first-degree residential robbery and burglary against an elderly victim, inflicting injury on an elder adult and misdemeanor theft from an elder adult. Subsequently, the Court of Appeal granted habeas corpus relief, reversed the bail determination and directed the trial court to conduct a new bail hearing.
Ratio Decidendi
The Supreme court of the California held that;
“…courts must consider an arrestee’s ability to pay alongside the efficacy of less restrictive alternatives when setting bail, it may prove useful for us to sketch the general framework governing bail determinations. When making any bail determination, a superior court must undertake an individualized consideration of the relevant factors. These factors include the protection of the public as well as the victim, the seriousness of the charged offense, the arrestee’s previous criminal record and history of compliance with court orders, and the likelihood that the arrestee will appear at future court proceedings.”
Analysis
- The very first time, Money bail was recognized by the Supreme Court of California
In re Humphrey (2018), it was held that before setting the amount of money bail, a court is constitutionally required to consider the defendant financial ability to pay. Further, in the same year, California Money Bail Reform Act was enacted, which would have abolished money bail in California, but it was put down by the referendum in November 2020. It is worth mentioning that the United States of America never recognized a right to affordable money bail and Humphrey is the first time where California Supreme Court has done so. Humphrey’s case relies on Bearden v. Georgia (1983), which held that the fourteenth amendment barred a state from incarcerating a felony because he was not in his position to pay his fine restitution as Bearden had lost his job. The High Court held that;
“In revocation proceedings for failure to pay a fine or restitution, a sentencing court must inquire into the reasons for the failure to pay. . .. If the probationer could not pay despite sufficient bona fide efforts to acquire the resources to do so, the court must consider alternate measures of punishment other than imprisonment. Only if alternate measures are not adequate to meet the State’s interests in punishment and deterrence may the court imprison a probationer who has made sufficient bona fide efforts to pay”
Hence, Humphrey lengthens norm pertaining to money bail as it is the constitutional right to liberty because arrestee stands innocent until proven guilty while probationer like Bearden has already been convicted. This gives the arrestee a strong argument to executive his fundamental right to liberty.
- Due process in pretrial detention bars unaffordable bail
It is important to mention here that several consequences follow from Humphrey’s case regarding recognition of a constitutional right to affordable bail. The crucial consequence is that imposing unaffordable bail is now considered unconstitutional. Before Humphrey’s case, most of the defendants retain in incarceration as they did not afford the amount for bail. However, A court now may set bail beyond a defendant’s ability to pay on a piece of clear and convincing evidence that the particular case falls within the Article I, section 12 exception and the incarceration is the only option to ensure the defendant’s protection and the defendant subsequent appearance in the court. The reliance is placed on the ratio stated in the Humphrey’s case;
“Pretrial detention is impermissible unless no less restrictive conditions of release can adequately vindicate the state’s compelling interests.”
This clearly elucidated that an incarceration order can’t result simply from a defendant’s inability to pay. However, it is based on safety of the victim, public safety and integrity of criminal proceedings.
- Constitutional Protection regarding granting bail
Prima facie, financial status has never been recognized by the U.S Supreme Court however, Humphrey’s case relies on the People v. Duenas, in which it was elucidated that due process under the constitution requires the trial court to hold a hearing to determine a defendant’s current financial ability to pay before imposing any financial restitution fines. The High Court held that;
“A state may not inflict punishment on indigent convicted criminal defendants solely on the basis of their poverty, and that the “potentially devastating consequences” of failing to pay criminal assessments on indigent persons “transforms a funding mechanism for the courts into additional punishment for a criminal conviction for those unable to pay.”
Subsequently, bail is the constitutional right granted by the constitution of California except on conditions where defendant previous crime record, public safety and defendant safety are concern.
- Article I, section 12 alone should control bail denials after Humphrey’s case decision
It is worth mentioning to point out here that the Humphrey’s case did not discuss the relationship between California Constitution’s bail clauses. However, this was elucidated in the final verdict of the Humphrey’s case that for the bail denial, the court considers Article I and section 12 of the California Constitution. The Hon’ble SC California held that;
“An arrestee may not be held in custody pending trial unless the court has made an individualized determination that (1) the arrestee has the financial ability to pay, but nonetheless failed to pay, the amount of bail the court finds reasonably necessary to protect compelling government interests; or (2) detention is necessary to protect victim or public safety, or ensure the defendant’s appearance, and there is clear and convincing evidence that no less restrictive alternative will reasonably vindicate those interests.”
However, Humphrey elucidated that liberty is the norm and detention before trial or without a trial is the carefully limited exception is more consistent with Article 1 section 12 rather than section 28 of the California Constitution.
Recommendations while Judges should be granting bail while considering Humphrey case
- Under Article I section 12 of the California Constitution, the court must consider that bail is the fundamental right unless the protection of the public as well as the victim, the seriousness of the charged offence, the arrestee’s previous criminal record and history of compliance with court orders, and the likelihood that the arrestee will appear at future court proceeding.
- The court where not granting bail must find clear and convincing evidence that the case falls within Article I section 12 exceptions. For the due process of law, the decision to detain a defendant must be supplemented by a statement for its decision on record in addition to the court’s minutes.
- If the defendant has the right to bail under Article I section 12, the court must conduct a personalized assessment pertaining to the defendant’s financial conditions and circumstances to conclude appropriate conditions of release.
Conclusion
The California Constitution guarantees a fundamental right to bail which may be denied only in narrow circumstances as incorporated under Article I Section 12 of the California Constitution. As per Humphrey case decided by the Hon’ble Supreme, no arrestee should retain in the incarceration only on the basis that he is financially unable to pay the bail amount. Subsequently, when modifying, setting or denying bail judges must conduct a personalized assessment to determine appropriate non-financial conditions of release. Moreover, a defendant should not be retaining in incarceration as his inability to afford the amount of the bail.
