California voters rejected Proposition 25 on Tuesday, meaning Senate Bill 10 — 2018 landmark legislation that would have changed California’s pretrial detention scheme by substituting a risk based analysis for money bail in determining when a person can be released from custody — will not take effect.  But, as Maura Dolan and Patrick McGreevy report in the Los Angeles Times, “the state’s highest court will probably have the final word.”

Back in May, we said,”Voters probably won’t know what the pretrial detention system will look like if they dump SB 10.  They will be choosing either SB 10 or the unknown alternative behind door number two.”

That turned out to be true because the court has not yet decided In re Humphrey, which has been pending fully briefed before the Supreme Court for two years.  The court granted review in May 2018 to determine whether 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 and whether, in setting the amount of monetary bail, a trial court may, or even must, consider public and victim safety.

The Humphrey Court of Appeal opinion under review held, “unquestioning reliance upon the bail schedule without consideration of a defendant’s ability to pay, as well as other individualized factors bearing upon his or her dangerousness and/or risk of flight, runs afoul of the requirements of due process for a decision that may result in pretrial detention.”

The Supreme Court initially declined to exercise its power under rule 8.1115(e)(3) to keep the opinion as binding precedent pending review, but in August it reversed course and restored precedential effect to the part of the opinion requiring an ability-to-pay consideration.  (See also here.)  It might be because of the recent order that the Times article says the court “is expected to uphold the [Court of Appeal] ruling.”

It’s likely the court delayed deciding Humphrey because SB 10 — if it had gone into effect — might have mooted the case.  The court even asked for briefing on that topic.  But the rejection of Proposition 25 won’t affect the court’s ability to change the bail system on constitutional grounds.

A hearing on the long-pending case could come as soon as next month.  The court has already sent an oral argument letter (in fact it did so in August 2019), which now typically precedes placing a case on calendar.  The court is expected to announce its December calendar within the next five days.


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