Saying that “[t]he disadvantages to remaining incarcerated pending resolution of criminal charges are immense and profound,” the Supreme Court today holds in In re Humphrey that “[t]he common practice of conditioning freedom solely on whether an arrestee can afford bail is unconstitutional” under federal and state due process and equal protection principles, and that courts thus “must consider the arrestee’s ability to pay the stated amount of bail.”

The court’s unanimous, 25-page opinion by Justice Mariano-Florentino Cuéllar also finds that courts should consider alternatives to any bail:  “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.”  The court nonetheless acknowledges that “no condition of release can entirely
eliminate the risk that an arrestee may harm some member of the public.”

Finally, the opinion states that there are “unusual circumstances” when pretrial detention will be required to protect “the safety of the victim and the public more generally or the integrity of the criminal proceedings.”  However, “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.”  The opinion expressly leaves undefined the specifics of those requirements.

The court affirms the First District, Division Two, Court of Appeal.


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