California Court of Appeal Justice Anthony Kline just delivered a masterfully written opinion (In re Humphreys) that will fundamentally change the bail system in California. Before I discuss the holding itself, I would like you to see how a true master starts out a decision:
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.
Undaunted, our Chief Justice, in her 2016 State of the Judiciary Address, told the Legislature it cannot continue to ignore “the question whether or not bail effectively serves its purpose, or does it in fact penalize the poor.” Questioning whether money bail genuinely ensures public safety or assures arrestees appear in court, the Chief Justice suggested that better risk assessment programs would achieve the purposes of bail more fairly and effectively. (Chief Justice Tani Cantil-Sakauye, State of the Judiciary Address, Mar. 8, 2016.) The Chief Justice followed up her address to the Legislature by establishing the Pretrial Detention Reform Workgroup in October 2016 to study the current system and develop recommendations for reform.
All that is left is the Legislature, and this is how he disposes of them.
This time the Legislature initiated action. Senate Bill No. 10, the California Money Bail Reform Act of 2017, was introduced at the commencement of the current state legislative session. The measure, still before the Legislature, opens with the declaration that “modernization of the pretrial system is urgently needed in California, where thousands of individuals held in county jails across the state have not been convicted of a crime and are awaiting trial simply because they cannot afford to post money bail or pay a commercial bail bond company.” We hope sensible reform is enacted, but if so it will not be in time to help resolve this case.
Right away, we see that he has cut the feet out of any opposition. He says, in effect, the governor and the Chief Justice are already on my side. The Legislature is just dawdling.
Then he gets down to the gist of the ruling.
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. Petitioner is entitled to a new bail hearing at which the court inquires into and determines his ability to pay, considers nonmonetary alternatives to money bail, and, if it determines petitioner is unable to afford the amount of bail the court finds necessary, follows the procedures and makes the findings necessary for a valid order of detention.
Here is bail in a nutshell: A person is charged with crime. Except in cases of capital murder, he is entitled to release on bail. The amount of bail is supposed to be enough to guarantee that the defendant will appear in court, and that the public will be protected. Bail need not be posted in cash. A defendant (or his friends and family) could post assets, which would be seized from them if he does not appear. Or the court can just take his word for it, releasing him on his “own recognizance” (O.R.). Another option is cash bail, posted by the defendant or by a bail bondsman. Until this case, the court was not required to consider the defendant’s ability to make bail in setting the amount or in considering non-monetary bail.
Relying upon its understanding of prior interpretations by the US Supreme Court of the Fourteenth Amendment the court held that,
… a court may not order pretrial detention unless it finds either that the defendant has the financial ability but failed to pay the amount of bail the court finds reasonably necessary to ensure his or her appearance at future court proceedings; or that the defendant is unable to pay that amount and no less restrictive conditions of release would be sufficient to reasonably assure such appearance; or that no less restrictive nonfinancial conditions of release would be sufficient to protect the victim and community.
This case will stick, for a very simple reason. The California Attorney General conceded, so there won’t be an appeal.
What’s the downside? It will be expensive. Right now the judge sets bail, mostly right off a schedule, and bail industry picks up most of the cost. The defendant gives the bondsman 10% of the amount, the bondsman puts up the rest, and if the defendants skips, the bondsman goes after him. An OR system requires a staff of government employees to investigate the defendant’s claims of community ties, and places the burden of chasing down people who don’t appear on the Sheriff or police. It will also congest the courts, as bail hearings will take much longer.
The upside is that it is the right thing to do, and it should result in lower jail populations, at considerable savings. For obvious reasons, the multi-billion dollar bail industry is staunchly opposed to any changes in the cash bail system. Some jurisdictions, such as Washington DC, have gone to a cashless system, and it appears to be succeeding.
Justice Kline recognized and acknowledged the difficulties.
We are not blind to the practical problems our ruling may present. The timelines within which bail determinations must be made are short, and judicial officers and pretrial service agencies are already burdened by limited resources.
But the 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.
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.
This ruling guarantees that bail reform will happen in California, and happen immediately.