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In a crucially important respect, California law is in line with the federal Constitution: liberty is the norm, and detention prior to trial or without trial is the carefully limited exception. An arrestee may not be held in custody pending trial unless the court has made an individualized determination that (1) the arrestee has the financial ability to pay, but nonetheless failed to pay, the amount of bail the court finds reasonably necessary to protect compelling government interests; or (2) detention is necessary to protect victim or public safety, or ensure the defendant's appearance, and there is clear and convincing evidence that no less restrictive alternative will reasonably vindicate those interests. Pretrial detention on victim and public safety grounds, subject to specific and reliable constitutional constraints, is a key element of our criminal justice system.
Petitioner Kenneth Humphrey was arrested for first-degree residential robbery and burglary against an elderly victim, inflicting injury on an elder adult, and misdemeanor theft from an elder adult. The superior court denied petitioner's request for release on his own recognizance (“OR”) and, acceding to the People's request, set bail at $600,000. Petitioner challenged the ruling by filing a motion for a formal bail hearing and an accompanying request for OR release. The superior court again denied OR and supervised release, but did find unusual circumstances warranting a reduction of bail to $350,000. Petitioner filed a petition for writ of habeas corpus in the Court of Appeal. Petitioner argued that requiring money bail as a condition of release at an amount the accused cannot pay was nothing less than the functional equivalent of a pretrial detention order—which can be justified only if the state established a compelling interest in detaining the accused and demonstrated that detention was necessary to further that purpose. The Court of Appeal granted habeas corpus relief, reversed the bail determination, and directed the trial court to conduct a new bail hearing. On remand, the superior court conducted a new bail hearing and ordered petitioner released on various nonfinancial conditions, including electronic monitoring, an order to stay away from the victim and his residence, and participation in a residential substance abuse treatment program for seniors. The state supreme court granted review on its motion to address the constitutionality of money bail as currently used in California as well as the proper role of public and victim safety in making bail determinations.
The Supreme Court affirmed the judgment of the Court of Appeal. The Court concluded the California Constitution prohibited pretrial detention to combat an arrestee's risk of flight unless the court found, based upon clear and convincing evidence, that no condition or conditions of release can reasonably assure the arrestee's appearance in court. The common practice of conditioning freedom solely on whether an arrestee can afford bail was unconstitutional. Other conditions of release—such as electronic monitoring, supervision by pretrial services, community housing or shelter, stay-away orders, and drug and alcohol testing and treatment—may often prove sufficient to protect the community. The Court held that where a financial condition was nonetheless necessary, the court must consider the arrestee's ability to pay the stated amount of bail—and may not effectively detain the arrestee solely because the arrestee lacked the resources to post bail. Because the trial court failed to consider petitioner'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), petitioner was entitled to a new bail hearing.