Across the nation, people are arrested and detained pretrial solely because they lack the money to pay bail.1 Although many state constitutions grant individuals a right to be released on bail except in the most serious cases, “courts use unaffordable bail conditions to detain people deemed too dangerous or flight prone to release.”2 Recently, in In re Humphrey,3 the Supreme Court of California held that detaining a person pretrial solely because they cannot afford bail violates due process and equal protection.4 Consequently, California courts must consider ability to pay when setting bail, and courts cannot set unaffordable bail that would result in pretrial detention unless there is clear and convincing evidence that no other condition would reasonably protect the government’s interests in public or victim safety or court appearance.5 Humphrey provided a significant substantive protection for indigent persons who might otherwise be jailed because of their poverty. However, the decision left unresolved core questions about the role of public safety in California’s bail scheme — a result that may limit the holding’s practical impact on reducing the hardships posed by bail and pretrial detention in the State of California.
On May 23, 2017, sixty-three-year-old Kenneth Humphrey followed seventy-nine-year-old Elmer J. into his apartment in the senior home in which they both lived, threatened him, threw his phone to the ground, demanded money, and stole $7 and a bottle of cologne.6 Humphrey was arrested for first-degree residential robbery and burglary against, injury of, and misdemeanor theft from an elder adult.7 At his arraignment, Humphrey requested release on his own recognizance,8 but at the prosecutor’s request,9 the trial court set a $600,000 money bail — without considering Humphrey’s inability to pay that sum.10 Humphrey filed a motion for a formal bail hearing to review the order.11 At the hearing, the prosecutor argued that robbery is “a serious and violent felony,” so the court would need to find “unusual circumstances” to deviate from the prescribed bail amount.12 The prosecutor maintained that the high money bail was appropriate because Humphrey’s substance abuse was “a great public safety risk” and the fact that Humphrey faced a lengthy sentence under California’s three-strikes law made him a “flight risk.”13 The trial court found there were “public safety and flight risk concerns” and denied release on Humphrey’s own recognizance or supervised release, but reduced bail to $350,000 on the condition that he participate in a substance abuse treatment program.14 Humphrey appealed, filing a habeas corpus petition that argued that conditioning release on an amount of money bail that one cannot pay is “the functional equivalent of a pretrial detention order.”15
The California Court of Appeal reversed and remanded the case for bail proceedings that would take into account Humphrey’s ability to pay.16 It noted that article I, section 12 of the California Constitution “establishes a person’s right to obtain release on bail from pretrial custody” except in certain cases of capital crimes, violent or sexual felonies, and serious threats of violence.17 Moreover, it held that:
[T]he due process and equal protection clauses of the Fourteenth Amendment require the court to make two additional inquiries and findings before ordering release conditioned on the posting of money bail — whether the defendant has the financial ability to pay the amount of bail ordered and, if not, whether less restrictive conditions of bail are adequate to serve the government’s interests . . . .18
Imposing unaffordable bail that resulted in Humphrey’s detention unjustifiably circumvented those inquiries and was thus unconstitutional.19 On remand, the trial court imposed nonfinancial conditions and released Humphrey.20 Neither party appealed, but the Supreme Court of California granted review on its own motion in order to address “the constitutionality of money bail” in California and “the proper role of public and victim safety in making bail determinations.”21
The California Supreme Court affirmed.22 Writing for the court, Justice Cuéllar held that “conditioning freedom solely on whether an arrestee can afford bail is unconstitutional.”23 In the bail context, an individual’s due process liberty interest in freedom from detention and equal protection right not to be detained solely because of indigency converge.24 This case presented a novel application of the Fourteenth Amendment, so the court reasoned by analogizing to two United States Supreme Court cases from other contexts: Bearden v. Georgia25 and United States v. Salerno.26 In Bearden, the Supreme Court held that Georgia had violated the Fourteenth Amendment when it revoked Danny Bearden’s probation based on his failure to pay restitution and court fines, because it did so without first finding either that Bearden had the ability to pay and was refusing to do so or that no alternative measures would meet the State’s penological interests.27 If Georgia’s interests could be met without imprisonment, it would violate substantive due process and equal protection to jail Bearden solely because his poverty left him unable to pay, despite his bona fide efforts.28
The Humphrey court explained that in the bail context, the state’s compelling interest is not to punish29 but rather “to ensure the defendant appears at court proceedings and to protect the victim, as well as the public, from further harm.”30 Nonetheless, Bearden’s reasoning similarly applied: “[I]f a court does not consider an arrestee’s ability to pay, it cannot know whether requiring money bail in a particular amount is likely to operate as the functional equivalent of a pretrial detention order.”31 And detention “solely because” of one’s inability to pay is an unconstitutional infringement on an individual’s due process and equal protection rights against wealth-based detention.32
To complement this hybrid due process and equal protection rationale,33 the court also invoked United States v. Salerno, in which the U.S. Supreme Court upheld the federal Bail Reform Act of 1984.34 In Salerno, the Court established that pretrial “liberty is the norm, and detention . . . the carefully limited exception.”35 The Bail Reform Act met this standard by authorizing detention in the name of public safety only “for a specific category of extremely serious offenses.”36 Thus, the Humphrey court emphasized, individuals retain a fundamental due process right to pretrial liberty that is not contingent on financial position37 and can be overridden only in narrowly tailored cases.38
Following these conclusions, the court provided a “sketch [of] the general framework” for imposing money bail in California.39 California courts may still impose money bail, but only if (a) the court has considered whether nonfinancial conditions may reasonably protect public and victim safety and assure court appearance, and (b) the court considers the individual’s ability to pay when setting the bail amount.40 Courts may set bail at a level that will result in the person’s detention only if there is clear and convincing evidence that no other conditions of release could reasonably protect the state’s interests in public and victim safety or court appearance.41 In Humphrey’s case, “the trial court . . . 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).”42 So, the court affirmed the appellate court’s decision to grant Humphrey a new bail hearing.43 All the other justices concurred with no separate opinions.44
In Humphrey, the California Supreme Court established an important protection for indigent persons in California by extending the reasoning of Bearden and Salerno to the pretrial money bail context. However, the briefing, oral argument, and lower appellate opinion also discussed two important questions about the appropriate relationship between money bail and public safety: first, whether money bail in California rationally provides any incentive not to commit a crime pretrial, and second, whether California’s state constitution provides a right to bail that limits courts’ ability to detain persons pretrial on public safety grounds. The Humphrey opinion skirted these issues and in doing so limited its full potential to reduce the hardships posed by bail and pretrial detention in California.45
Before addressing the limitations of the decision, it is important to note the huge strides the California Supreme Court made in preventing persons from being jailed pretrial simply because of their poverty.46 This protection is quite valuable in light of the well-documented, detrimental impact of pretrial detention,47 the race and class inequities of the bail system,48 and the pressures innocents face to plead guilty when they cannot afford bail.49 The state does have compelling interests in setting pretrial conditions “to ensure the defendant appears at court proceedings and to protect the victim, as well as the public, from further harm.”50 But in California’s pre-Humphrey system, many indigents languished in California’s jails even though they posed no safety or flight risk, whereas others who may have posed such risks were released because they could pay their money bond.51 Humphrey rejected that approach by holding that a court must first consider whether nonfinancial release conditions may reasonably satisfy the state’s interests.52 If they cannot, then the court must consider ability to pay, so that a court does not issue bail amounts that are functionally detention orders for less-resourced individuals but which permit release for those with the ability to pay.53
Humphrey takes away a court’s ability to set unaffordable bail as a way to functionally implement a detention order when it could not meet the requirements of an explicit detention order. Humphrey extends the same substantive and procedural standards required for pretrial detention under article I, section 12 of the California state const-itution — a showing of “clear and convincing evidence” of a threat of serious harm or flight risk54 and “clear and convincing evidence that no other conditions of release could reasonably protect those interests”55 — and the Fourteenth Amendment to orders of unaffordable bail that cause individuals to be detained pretrial. It is an “open secret” that courts in right-to-bail states often use unaffordable bail to evade the state’s constitutional restrictions on pretrial detention.56 Humphrey’s holding has the potential to bring an end to that practice and revitalize the right to release in a significant number of cases involving no threat of serious violence or in which nonfinancial conditions would suffice.
There are, however, two aspects left open by the Humphrey opinion that may limit the transformative potential of its holding. First, Humphrey’s sketch of California’s bail framework suggests that where no nonfinancial condition can protect the government’s interests, a court may conclude that money bail is “reasonably necessary” to assure public and victim safety or court appearance.57 It may then set affordable bail based on an individual’s ability to pay, charged offense, and criminal record.58 The typical rationale for money bail is that it incentivizes persons released pretrial to return to court to retrieve the money they posted as bail.59 But, as even the District Attorney acknowledged in Humphrey, money bail in California cannot possibly serve as an incentive for noncriminal behavior because, under California law, the person can retrieve their bail money even if they commit a new offense while released.60 Other jurisdictions have rejected that money bail can ever be a reasonable way to secure public safety,61 yet the California Supreme Court chose not to reckon with this in Humphrey. Instead, it left in place a legal fiction with real consequences for those who are forced to pay bail under its rationale.62 It will be up to petitioners to argue that within Humphrey’s framework, there is no rational basis for a court to conclude that money bail is reasonably necessary to assure public or victim safety.
Second, the court left open the possibility that the right to bail provided by article I, section 12 of California’s state constitution was abrogated by article I, section 28(f)(3).63 Section 28 introduces broader victim and public safety considerations into the bail determination.64 The State argued that the court should interpret section 28 to mean that defendants who otherwise have a right to bail under section 12 — because they neither are charged with capital crimes nor present clear and convincing evidence of a substantial likelihood of inflicting great bodily harm on release65 — can nevertheless be detained as long as a court finds they “present a risk to victim or public safety by a preponderance of the evidence.”66 This construction would both lower the evidentiary standard and expand section 12’s narrow exemptions to encompass any public or victim safety risk. Yet the Court of Appeal chose not to address this argument,67 and the Supreme Court skirted it as well.68 A future embrace of such a view of section 28 would abrogate the currently very limited standard for permissible pretrial detention. As such, it would significantly undercut the protection against pretrial detention provided by Humphrey by making it easier for courts to justify pretrial detention explicitly without needing to rely on unaffordable bail.