NEW Appellate Opinion Analyzing Pretrial Bail Determinations

On January 25, 2018, the California Court of Appeal, First Appellate District, certified for publication In re Kenneth Humphrey 2018 S.O.S. 464, an appellate case analyzing issues pertaining to due process and equal protection rights concerning bail determinations.

The appellate court in In re Kenneth Humphrey began its opinion by summarizing the state of the bail system in California and the long-anticipated need for reform. (In re Kenneth Humphrey 2018 S.O.S. 464 at Page 1).

In its appellate decision, the appellate court noted its hope that sensible reform will be enacted by the Legislature, but acknowledged that it will not be in time to resolve the present case. (Id.). This case demonstrates the “significant disconnect between the stringent legal protections state and federal appellate courts have required for proceedings that may result in a deprivation of liberty and what actually happens in bail proceedings in our criminal courts.” (Id., emphasis added).

The court in In re Humphrey determined that the due process and equal protection Clauses of the 14th Amendment require the court to make the two inquiries before ordering release conditioned on the posting of money bail (1) whether the defendant has the financial ability to pay the amount of bail ordered and (2) if not, whether less restrictive conditions of bail are adequate to serve the government’s interest. (Id. at 16-17).

According to In re Kenneth Humphrey 2018 S.O.S. 464, a court may not order pretrial detention unless it finds either:

(1) the defendant has the financial ability but failed to pay the amount of bail the court finds reasonably necessary to ensure his or her appearance at future court proceedings,

(2) the defendant is unable to pay that amount and no less restrictive conditions of release would be sufficient to reasonably assure such appearance, or

(3) that no less restrictive nonfinancial conditions of release would be sufficient to protect the victim and community.

(Id. at Page 17).

In the event that the court determines that an amount of money bail the defendant is unable to pay is required to ensure his or her appearance at future court hearings, “it may impose that amount only upon a determination by clear and convincing evidence that no less restrictive alternative would satisfy that purpose.” (Id. at Page 31).

According to In re Humphrey, in decisions that may result in pretrial detention it is a fundamental requirement that factors related to an individual defendant’s circumstances be considered. (In re Kenneth Humphrey, supra, 2018 S.O.S. at Page 35). “Failure to consider a defendant’s ability to pay before setting money bail is one aspect” of this requirement. (Id.). An individualized determination of a defendant’s ability to pay is required as, a defendant may not be imprisoned solely due to poverty. (Id.).

Bail schedules, which provide standardized money bail amounts based on the offense charged, “represent the antithesis of the individualized inquiry required before a court can order pretrial detention.” (Id. at Page 37). These schedules have no regard to other characteristics of an individual defendant that bear on his or her risk level and are based on the inaccurate assumption that defendants with more serious offenses are more likely to flee. (Id. at Page 37-38).

After a court makes its determination that public and victim safety do not require pretrial detention, the important financial inquiry is the amount necessary to secure the defendant’s appearance at a court hearing - not the standardized bail schedule amount. (Id. at 40).

The decision in In re Humphrey strongly supports an argument that courts must inquire into a defendant’s individualized ability to pay bail and whether other nonfinancial conditions may ensure the defendant’s will appear in court when ordered.


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