Got Bail? California Supremes Change Bail Dynamic with Humphrey Decision

The California Supreme Court, last month, upheld the Court of Appeal Decision in In Re Kenneth Humphrey.  This is a game changer for the bail system in California.  Now the court can consider a defendant’s ability to pay the bail in deciding what the bail should be, or if alternatives to incarceration can be arranged. 

The facts that inspired the Humphrey decision were compelling.  Kenneth Humphrey, a 66-year-old defendant remained incarcerated pending trial for a prolonged period of time because he couldn’t afford to post the exorbitant bail, initially set at $600,000.  Even when his bail was reduced by almost ½, that was a far cry from what Mr. Humphrey, who was unemployed, could afford.

The property involved in the robbery was a $2.00 bottle of cognac and $5.00 in cash.  Mr. Humphrey did have a criminal history, but his last arrest was 14 years before and his last serious offense (strike offense) was back in 1992.  The Supreme Court noted that the cost of pretrial incarceration is enormous and almost half a million people are locked up in jail prior to trial.  

Also, the toll on people faced with pretrial incarceration is huge.  The high court noted several studies that showed an incarcerated person facing trial is put at a disadvantaged vs. the defendant who remains free on bond.  Being in jail pending trial, can lead to losing your career, your home, and even the custody of your children.  Studies also show that being locked up for a longer period actually increases the chances of reoffending. 

Now, after the court’s decision in In Re Humphrey, courts must consider the defendants ability to pay the bail, along with whether less restrictive alternatives, such as electronic monitoring, such as electronic monitoring, supervision by a pretrial services office or probation, community housing or shelter, stay-away orders, drug and alcohol testing, or treatment programs.  The court must now balance those alternatives against other “relevant” factors.  Those factors are the seriousness of the alleged crime, the security of the victim, the defendant’s prior criminal history, track record of following court orders, and the chances that the defendant will show up to his/her court appearances.

However, I can say in practice, in the real world, the Humphrey decision may not be as much of a game changer as we might think.  Judges are, often, concerned with the fall out should a person on pretrial release commit a new offense after they granted release.  For instance, it doesn’t look great when a defendant you released, goes down the street and holds up a McDonalds. Judges are concerned with what happens in the public eye, the news, and social media.  Judges may end up considering and rejecting these less restrictive alternatives more often that you might imagine.  They may end up giving more weight to factors that would justify incarceration.  After all, an incarcerated defendant is not, usually, a threat to a judge’s career prospects. 

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