In re Humphrey
| Citation | 482 P.3d 1008,11 Cal.5th 135,276 Cal.Rptr.3d 232 |
| Decision Date | 25 March 2021 |
| Docket Number | S247278 |
| Court | California Supreme Court |
| Parties | IN RE Kenneth HUMPHREY on Habeas Corpus. |
Civil Rights Corps, Alec Karakatsanis, Katherine C. Hubbard; Wilmer Cutler Pickering Hale and Dorr, Seth P. Waxman, Daniel S. Volchok, Thomas G. Sprankling, Palo Alto; Jeff Adachi, Public Defender, Matt Gonzalez, Chief Deputy Public Defender, Paul Myslin, Christopher F. Gauge, Anita Nabha and Chesa Boudin, Deputy Public Defenders, for Petitioner Kenneth Humphrey.
Bartell, Hensel & Gressley, Donald J. Bartell, Lara J. Gressley, Riverside, and Michael W. Donaldson for California DUI Lawyers Association as Amicus Curiae on behalf of Petitioner Kenneth Humphrey.
Arnold & Porter Kaye Scholer, Krista Carter, Edmond Ahadome, Michael Isaacs and Oscar Ramallo, Los Angeles, for Human Rights Watch as Amicus Curiae on behalf of Petitioner Kenneth Humphrey.
Pillsbury Winthrop Shaw Pittman, Thomas V. Loran III ; Goodin, MacBride, Squeri & Day and Francine T. Radford, San Francisco, for the 22 Social Scientists as Amici Curiae on behalf of Petitioner Kenneth Humphrey.
Keker, Van Nest & Peters, Daniel Purcell, Maya Karwande, Divya Musinipally, Divya Musinipally ; and W. David Ball for Crime Survivors for Safety and Justice as Amicus Curiae on behalf of Petitioner Kenneth Humphrey.
Micaela Davis ; Peter Eliasberg ; David Loy, Oxnard; Remcho, Johansen & Purcell, Robin B. Johansen, Sacramento, and James C. Harrison, Sacramento, for ACLU of Northern California, ACLU of Southern California, ACLU of San Diego and Imperial Counties and California law professors as Amici Curiae on behalf of Petitioner Kenneth Humphrey.
University of San Francisco School of Law, Lara Bazelon ; Columbia School of Law, Kellen R. Funk; University of Georgia School of Law and Sandra G. Mayson for National Law Professors of Criminal, Procedural, and Constitutional Law as Amici Curiae on behalf of Petitioner Kenneth Humphrey.
Crowell & Moring, A. Marisa Chun, San Francisco, and McDermott Will & Emery, Sarah P. Hogarth for the Bar Association of San Francisco, The Los Angeles County Bar Association and The Santa Clara County Bar Association as Amici Curiae on behalf of Petitioner Kenneth Humphrey.
Todd W. Howeth, Ventura, and Michael C. McMahon, Santa Barbara, for California Public Defenders Association and Public Defender of Ventura County as Amici Curiae on behalf of Petitioner Kenneth Humphrey.
Bradley Arant Boult Cummings, J. Bradley Robertson, Candice L. Rucker, Rachel A. Conry and Kimberly M. Ingram for California Association of Pretrial Services, National Association of Pretrial Services Agencies, Pretrial Justice Institute and National Association for Public Defense as Amici Curiae on behalf of Petitioner Kennth Humphrey.
Emily Ludmir Aviad, Los Angeles; Michael L. Pomeranz ; Jonathan L. Marcus, Paul M. Kerlin and Ryan J. Travers for Faith Leaders and Organizations as Amici Curiae on behalf of Petitioner Kenneth Humphrey.
Venable, Alex M. Weingarten, Belinda M. Vega, Los Angeles, Eric J. Blakewell, Matthew M. Gurvitz, Los Angeles; and Robert M. Carlson for American Bar Association as Amicus Curiae on behalf of Petitioner Kenneth Humphrey.
Institute for Constitutional Advocacy and Protection, Mary B. McCord, Douglas N. Letter, Joshua A. Geltzer and Seth Wayne for current and former prosecutors and law enforcement officials as Amici Curiae on behalf of Petitioner Kenneth Humphrey.
George Gascón, District Attorney, Sharon L. Woo, Chief Assistant District Attorney, Wade K. Chow, Assistant Chief District Attorney, Allison G. Macbeth, Assistant District Attorney; Xavier Becerra, Attorney General, Gerald A. Engler, Chief Assistant Attorney General, Jeffrey M. Laurence, Assistant Attorney General, Seth K. Schalit and Katie L. Stowe, Deputy Attorneys General, for Respondent The People.
Summer Stephan, District Attorney, Mark A. Amador, Linh Lam and Marissa A. Bejarano, Deputy District Attorneys for San Diego County District Attorney as Amicus Curiae on behalf of Respondent The People.
Law Offices of Donald Kilmer, Donald Kilmer and Jessica Danielski for Crime Victims United Charitable Foundation as Amicus Curiae on behalf of Respondent The People.
Michael A. Ramos, District Attorney, and Brent J. Schultze, Deputy District Attorney, for District Attorney of San Bernardino County as Amicus Curiae on behalf of Respondent The People.
Kent S. Scheidegger and Kymberlee C. Stapleton for Criminal Justice Legal Foundation as Amicus Curiae on behalf of Respondent The People.
Albert W. Ramirez and Dale Christopher Miller, Riverside, for Golden State Bail Agents Association as Amicus Curiae.
Xavier Becerra, Attorney General, Edward DuMont, State Solicitor General, Gerald A. Engler, Chief Assistant Attorney General, Jeffrey M. Laurence, Assistant Attorney General, Joshua Klein, Deputy State Solicitor General, as Amicus Curiae.
An arrestee's release pending trial is often conditioned on whether the arrestee can make bail. To do so, an arrestee posts security — in the form of cash, property, or (more often) a commercial bail bond — which is forfeited if the arrestee later fails to appear in court. Those who can't afford to satisfy the bail condition remain in jail until the end of the criminal proceedings.
Underlying this arrangement is a major premise: that the state has a compelling interest in assuring the arrestee's appearance at trial and protecting the safety of the victim as well as the public. Yet those incarcerated pending trial — who have not yet been convicted of a charged crime — unquestionably suffer a "direct ‘grievous loss’ " of freedom in addition to other potential injuries. ( Van Atta v. Scott (1980) 27 Cal.3d 424, 435, 166 Cal.Rptr. 149, 613 P.2d 210 ( Van Atta ).) In principle, then, pretrial detention should be reserved for those who otherwise cannot be relied upon to make court appearances or who pose a risk to public or victim safety. (Cf. Bearden v. Georgia (1983) 461 U.S. 660, 661–662, 103 S.Ct. 2064, 76 L.Ed.2d 221 ( Bearden ) []; In re Antazo (1970) 3 Cal.3d 100, 113–116, 89 Cal.Rptr. 255, 473 P.2d 999 ( Antazo ) [same].) But it's a different story in practice: Whether an accused person is detained pending trial often does not depend on a careful, individualized determination of the need to protect public safety, but merely — as one judge observes — on the accused's ability to post the sum provided in a county's uniform bail schedule. (See Karnow, Setting Bail for Public Safety (2008) 13 Berkeley J. Crim. L. 1, 16–17.)
Petitioner Kenneth Humphrey, joined by the Attorney General, challenges this system with a claim as simple as it is urgent: No person should lose the right to liberty simply because that person can't afford to post bail. His claim joins a "clear and growing movement" that is reexamining the use of money bail as a means of pretrial detention. ( ODonnell v. Harris County (S.D.Tex. 2017) 251 F.Supp.3d 1052, 1084.)
We find merit in Humphrey's claim. The common practice of conditioning freedom solely on whether an arrestee can afford bail is unconstitutional. Other conditions of release — such as electronic monitoring, regular check-ins with a pretrial case manager, community housing or shelter, and drug and alcohol treatment — can in many cases protect public and victim safety as well as assure the arrestee's appearance at trial. What we hold is that where a financial condition is nonetheless necessary, the court must consider the arrestee's ability to pay the stated amount of bail — and may not effectively detain the arrestee "solely because" the arrestee "lacked the resources" to post bail. ( Bearden , supra , 461 U.S. at pp. 667, 668, 103 S.Ct. 2064.)
In unusual circumstances, the need to protect community safety may conflict with the arrestee's fundamental right to pretrial liberty — a right that also generally protects an arrestee from being subject to a monetary condition of release the arrestee can't satisfy — to such an extent that no option other than refusing pretrial release can reasonably vindicate the state's compelling interests. In order to detain an arrestee under those circumstances, a court must first find by clear and convincing evidence that no condition short of detention could suffice and then ensure the detention otherwise complies with statutory and constitutional requirements. (See post , pp. 21–23.)
Detention in these narrow circumstances doesn't depend on the arrestee's financial condition. Rather, it depends on the insufficiency of less restrictive conditions to vindicate compelling government interests: the safety of the victim and the public more generally or the integrity of the criminal proceedings. Allowing the government to detain an arrestee without such procedural protections would violate state and federal principles of equal protection and due process that must be honored in practice, not just in principle.
Because the trial court here failed to consider Humphrey's ability to afford $350,000 bail (and, if he could not, whether less restrictive alternatives could have protected public and victim safety or assured his appearance in court), we agree with the Court of Appeal: Humphrey was entitled to a new bail hearing.
What brought Humphrey, 66 years old, to this point was his arrest on May 23, 2017, for first degree residential robbery and burglary against an elderly victim, inflicting injury on an elder adult, and misdemeanor theft from an elder adult. ( Pen. Code, §§ 211, 368, subds. (c) & (d), 459, 667.9, subd. (a).) The criminal complaint also charged that Humphrey had suffered four prior strike convictions (see id ., §§ 667, subds. (b) – (i), 1170.12, subds. (a) – (d) ) and four prior serious felony convictions ( id ., § 667, subd. (a)(1) ), all for robbery or attempted robbery.1
The complaining witness, 79-year-old Elmer...
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