The Supreme Court today announced it will examine the parameters of California’s cash bail system under the state’s constitution, granting review on its own motion in the closely watched case of In re Humphrey. The California Attorney General did not petition the court for review of the First District, Division Two, Court of Appeal’s opinion that held that, as to the habeas corpus petitioner in the case, “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.” However, the local district attorney asked the court to exercise its independent authority to review the case (which the court did today) and there were several depublication requests (which the court today denied, leaving the appellate opinion citable for its persuasive effect, but not as binding precedent).
Money bail is a hot topic of criminal justice reform. In her most recent State of the Judiciary address, Chief Justice Tani Cantil-Sakauye quoted then-Attorney General Robert F. Kennedy’s Congressional testimony that the money bail system is a “vehicle for systematic injustice” and she labeled that over-half-century-old statement a “clarion call for justice” in 2018. She also highlighted the recommendations of the Pretrial Detention Reform Workgroup that she established.
In its order granting review, the court specified these issues to be briefed and argued:
(1) Did the Court of Appeal err in holding that principles of constitutional due process and equal protection require consideration of a criminal defendant’s ability to pay in setting or reviewing the amount of monetary bail? (2) In setting the amount of monetary bail, may a trial court consider public and victim safety? Must it do so? (3) Under what circumstances does the California Constitution permit bail to be denied in noncapital cases? Included is the question of what constitutional provision governs the denial of bail in noncapital cases — article I, section 12, subdivisions (b) and (c), or article I, section 28, subdivision (f)(3), of the California Constitution — or, in the alternative, whether these provisions may be reconciled.
Because of the Court of Appeal’s decision now under review, the superior court earlier this month ordered the release of the defendant in this case — Kenneth Humphrey — who could not afford the $350,000 bail the court had set.