In our criminal justice system, the presumption of innocence is a paramount protection. Only admissible, legally obtained evidence may prove an accused guilty beyond a reasonable doubt. So why has one out of every four inmates in California’s jails or prisons not been sentenced or even convicted of a crime? Because of pre-trial detention. And many of those in pre-trial detention languish in jail prior to the adjudication of their charges because California’s money bail system leaves indigent individuals unable to afford the same set amount of bail that wealthy individuals are able to pay.

Many observers, including California Chief Justice Tani G. Cantil-Sakauye, have long suggested that California’s current procedures for setting money bail are unconstitutional because the poor are unfairly held in custody prior to the adjudication of their cases. The issue of how California’s current bail schedules and trial court bail-setting procedures unfairly and unjustly impact indigent individuals has been at the forefront of criminal justice reform. Two cases since the start of the year, one in the California First District Court of Appeal and the other in the Federal Ninth Circuit Court of Appeals, have caused a seismic shift in the discussion by declaring the current system unconstitutional because indigent individuals are detained pre-trial without consideration of their ability to pay bail.

The Current System

Money bail is largely set based on a bail schedule that outlines the amount of bail for each crime and enhancement. This bail schedule does not account for either the presumption of innocence or an individual’s ability to pay. Furthermore, each of California’s counties is responsible for setting its own bail schedule, which also leads to uneven treatment of the same offense county to county. Unfortunately, money bail also operates as much as a mechanism to force guilty pleas in criminal cases where detained individuals can’t afford bail as it does a tool to protect public safety. An individual who lacks the means to afford bail is more likely to plead guilty to a criminal offense if it means immediate release from custody. Court observers have long noted with dismay the reality that potentially innocent individuals plead guilty to get out of jail when they can’t afford their bail amount because they would stay in jail longer if they fought their case rather than immediate release via a guilty plea and credit-for-time-served sentence.

In her 2016 State of the Judiciary Address, California Supreme Court Chief Justice Tani G. Cantil-Sakauye questioned whether California’s money bail program unfairly penalized the poor, “I also want to talk about bail. I think it’s time for us to really ask the question whether or not bail effectively serves its purpose, or does it in fact penalize the poor. Bail—does it really ensure public safety? Does it in fact assure people’s appearance in court, or would a more effective risk assessment tool be as effective for some cases?” (1) She commissioned a workgroup to study the problem of bail and this group published its findings and recommendations in October 2017. The workgroup noted that the current bail structure in California was failing its purpose, “At the conclusion of this process, the Workgroup determined that California’s current pretrial release and detention system unnecessarily compromises victim and public safety because it bases a person’s liberty on financial resources rather than the likelihood of future criminal behavior and exacerbates socioeconomic disparities and racial bias.” (2)

The Recent Decisions: In Re Humphrey

On January 25, 2018, in a landmark ruling, the California First District Court of Appeals recognized that the issue of money bail unfairly impacting indigent individuals has been noted for decades:

Nearly forty years ago, during an earlier incarnation, the present Governor of this state declared in his State of the State Address that it was necessary for the Legislature to reform the bail system, which he said constituted an unfair “tax on poor people in California. Thousands and thousands of people languish in the jails of this state even though they have been convicted of no crime. Their only crime is that they cannot make the bail that our present law requires.” Proposing that California move closer to the federal system, the Governor urged that we find “a way that more people who have not been found guilty and who can meet the proper standards can be put on a bail system that is as just and as fair as we can make it.” (Governor Edmund G. Brown Jr., State of the State Address, Jan. 16, 1979.)
The Legislature did not respond.
In re Humphrey (Cal. Ct. App., Jan. 25, 2018, No. A152056) 2018 WL 550512, at *1

Indeed, the court acknowledged that the criticism dates back nearly to the founding of our country:

[T]he problem this case presents does not result from the sudden application of a new and unexpected judicial duty; it stems instead from the enduring unwillingness of our society, including the courts (see, e.g., Foote, The Coming Constitutional Crisis in Bail: I (1965) 113 U. Pa. L.Rev. 959-960, 998), to correct a deformity in our criminal justice system that close observers have long considered a blight on the system. (29)

29
Alexis De Tocqueville, a keen early observer of our criminal procedures, observed in 1835 that our bail system “is hostile to the poor, and favorable only to the rich. The poor man has not always a security to produce ...; and if he is obliged to wait for justice in prison, he is speedily reduced to distress. A wealthy person, on the contrary, always escapes imprisonment. ... Nothing can be more aristocratic than this system of legislation. (De Tocqueville, Democracy in America (Dover Thrift ed. 2017) p. 56.) Tocqueville attributed this anomaly to English law which he thought Americans retained despite the fact that it was “repugnant to the general tenor of their legislation and the mass of their ideas.” (Ibid.)
In re Humphrey (Cal. Ct. App., Jan. 25, 2018, No. A152056) 2018 WL 550512, at *24

The First District Court of Appeal went on to rule unanimously that the current framework of bail schedules, bail hearings, and money bail leads to unconstitutional injustice because of the lack of meaningful protections before a presumed innocent person is ordered detained subject to a bail they cannot afford. The Justices specifically found that pre-conviction, presumed innocent individuals were being detained without adequate due process protections because bail hearings have largely degenerated into decisions based on review of allegations and not of evidence:

As this case demonstrates, there now exists a significant disconnect between the stringent legal protections state and federal appellate courts have required for proceedings that may result in a deprivation of liberty and what actually happens in bail proceedings in our criminal courts. As we will explain, although the prosecutor presented no evidence that non-monetary conditions of release could not sufficiently protect victim or public safety, and the trial court found petitioner suitable for release on bail, the court's order, by setting bail in an amount it was impossible for petitioner to pay, effectively constituted a sub rosa detention order lacking the due process protections constitutionally required to attend such an order.
In re Humphrey (Cal. Ct. App., Jan. 25, 2018, No. A152056) 2018 WL 550512, at *2

The Humphrey Court recognized that its ruling would change the landscape of bail hearings in California and this would be difficult for courts to financially absorb:

The problem, as our Chief Justice has shown, requires the judiciary, not just the Legislature, to change the way we think about bail and the significance we attach to the bail process. Though legislation is desperately needed, administration of the bail system is committed to the courts. It will be hard, perhaps impossible, for judicial officers to fully rectify the bail process without greater resources than our trial courts now possess. Nevertheless, the highest judicial responsibility is and must remain the enforcement of constitutional rights, a responsibility that cannot be avoided on the ground its discharge requires greater judicial resources than the other two branches of government may see fit to provide. Judges may, in the end, be compelled to reduce the services courts provide, but in our constitutional democracy the reductions cannot be at the expense of presumptively innocent persons threatened with divestment of their fundamental constitutional right to pretrial liberty.
In re Humphrey (Cal. Ct. App., Jan. 25, 2018, No. A152056) 2018 WL 550512, at *24

The language and analysis of the Humphrey Court is shockingly direct and clearly calls out the legislature for failing to properly address the bail issue. The opinion also challenges trial court judges to take the role of protector of the liberty of pre-trial detainees when it comes to setting bail. This opinion is sure to be controversial because it places the liberty interests of pre-trial detainees into an equation that also includes the protection of public safety and ensuring that an accused returns to court.

The Recent Decisions: Arevalo v. Hennessy

The Ninth Circuit Court of Appeals echoed the Humphrey Court and granted a federal writ of habeas corpus where bail was set in the trial court without consideration of the defendant’s ability to pay bail or findings as to what government interest would be served by bail in the amount of one million dollars. The Petitioner in Arevalo v. Hennessy “argued that the trial court violated California law and his federal constitutional rights to equal protection and due process by requiring money bail without making the findings required for an order of pretrial detention. The Court of Appeal summarily denied the writ four days later.” Arevalo v. Hennessy (9th Cir. Feb. 9, 2018, No. 17-17545) 2018 WL 794530, at *1 The California Attorney General did not oppose the petition. Indeed, the Ninth Circuit panel noted, “The State filed an answer declining to defend the district court's bail setting and affirmatively arguing that Arevalo was entitled to a hearing with specific consideration of his ability to pay and nonmonetary alternatives to bail." Id. at *2

Finality of In Re Humphrey

On February 20th 2018, California Attorney General Xavier Becerra announced that his office would not be appealing the Humphrey decision:

‘The Court of Appeal's decision is an important recognition of the critical need to reform our current bail system,’ said Attorney General Becerra. ‘We must continue to pursue changes in our bail system to ensure it's rooted in principles of fairness and prioritizes public safety for all. As the Court notes, this is going to require legislative changes and additional resources. Decisions regarding who should remain in jail while awaiting trial should be based on their danger to the public, not dollars in their pocket. Bail determinations must keep Californians safe and ensure that a defendant shows up for trial. Bail determinations that do not consider whether a person awaiting trial can afford bail, and whether there are alternatives to incarceration that still preserve public safety, do not promote justice.” See Humphrey Case Press Release

It is now clear that it is unconstitutional for a court to fail to consider an individual’s ability to afford bail prior to setting bail. Likewise, it is clear that a court must consider what non-custodial alternatives protect public safety. The Humphrey decision places massive pressure onto our trial courts to figure out how to protect the constitutional rights of the accused (all of whom are presumed to be innocent) while protecting public safety. Until the legislature acts, the trial courts must balance these competing interests while attempting to find the resources to comply with the Humphrey court’s dictates.

Incorrect Initial Guidance

Unfortunately, an influential judge has already issued guidance on implementing Humphrey that strikingly misinterprets the case to allow pretrial detention without bail to protect public safety for any crime, directly contravening the California Constitution. Retired Placer County Superior Court Judge J. Richard Couzens regularly publishes reports and guidance for trial court judges through the California Judicial Council. Setting aside the issue of whether it is appropriate for the California Judicial Council or a retired judge to be issuing guidance to trial court judges across the state without any public input or notice to the defense bar or prosecution, Judge Couzens is regarded as a respected source for interpretation of new statutes and appellate court decisions and unfortunately his guidance is likely to be followed by trial courts at least for now.

Article I, Section 12 of the California Constitution requires bail to be set except in limited cases. Bail may be denied for (1) capital crimes, (2) violent felonies where the court makes a specified finding of the risk of great bodily harm to others if bail is not denied, and (3) all felonies where the court makes a specified finding of the risk of great bodily harm to others when the accused has threatened it. The Humphrey court cannot overrule the Constitution nor did it purport to. But in setting forth the steps a trial court should take when considering bail, in a memo published January 30, 2018, Judge Couzens claims:

The court should first determine whether the defendant is ineligible for bail under the provisions of article 1, section 12 of the constitution, or otherwise presents a danger to the public or victim. If the court determines by clear and convincing evidence that no condition of supervision or alternative to custody will adequately protect the public or a victim, the court may order preventive detention without regard to setting of a particular amount of bail – it would be a “no bail” setting…

To be clear, Humphrey held that a court may preventively detain a person where the court determines by clear and convincing evidence that “no less restrictive nonfinancial conditions would be sufficient to protect the victim and community.” (Humphrey, page 17.) The court did not limit such authority to capital offenses or crimes of violence specified in article 1, section 12 of the constitution.
(See Memo from J. Richard Couzens dated January 30, 2018, regarding In re Humphrey (2018) ___ Cal.App.5th ___ [A152056] Ability to pay determination required for bail setting and requirements for pretrial detention)

Judge Couzens inexplicably interprets Humphrey to allow a trial court to deny bail in a broader range of cases than the Constitution allows, a step in the opposite direction from Humphrey. His interpretation is against the spirit of bail reform and is squarely contradicted by the First District Court of Appeals, the Federal Ninth Circuit Court of Appeals, and the Attorney General of California. It seems unlikely that any detention based on Judge Couzens’ interpretation of Humphrey would be upheld at the appellate level. But the broad gap between his opinion and the directives of the higher courts certainly reinforces the need for urgent legislative action on the issue of money bail in California.

(1) STATE OF THE JUDICIARY ADDRESS TO A JOINT SESSION OF THE CALIFORNIA LEGISLATURE March 8, 2016, 4 p.m.
(2) Pretrial Detention Reform RECOMMENDATIONS TO THE CHIEF JUSTICE PRETRIAL DETENTION REFORM WORKGROUP OCTOBER 2017