Release Date: January 4, 2021
Contact:  Michael Rushford
(916) 446-0345

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On Tuesday, the California Supreme Court will hear oral argument in a case involving a habitual criminal’s challenge to his bail amount. In May 2018, the high court accepted the case of In re Humphrey to review a First District Court of Appeal ruling which announced that, in his decision to set bail, a trial judge must consider a defendant’s ability to pay. According to the court of appeal, if it is determined that the defendant is unable to pay, the judge is required to consider nonmonetary alternatives, such as release on one’s own recognizance.

In September 2018, a month after Governor Brown signed into law SB10, a statute to eliminate money bail, the Supreme Court asked for additional briefing on the impact of the new law on the case. But after the voters rejected that law in November 2020 by over 56%, the court’s review will focus entirely on the appellate court ruling.

The Criminal Justice Legal Foundation joined the case to argue that the appeals court ruling should be overturned.

The case involves repeat felon Kenneth Humphrey who was charged with robbery after he followed an elderly man into his San Francisco apartment in May 2017 where he threatened and robbed him. At his bail hearing, Humphrey asked to be released on his own recognizance because of his ties to the community. Noting Humphrey’s criminal record, the judge refused, setting bail at $350,000. On appeal, Humphrey won a ruling ordering the trial judge to base the decision regarding bail on his ability to pay.

When the Supreme Court agreed to review that ruling, CJLF joined the case. In a scholarly amicus curiae (friend of the court) brief, CJLF Associate Attorney Kymberlee Stapleton argues that California law governing a judge’s decision to grant bail requires the consideration of several factors: the protection of the public, the safety of the victim, the seriousness of the offense charged, the defendant’s previous criminal record, and the probability of his or her appearing for trial. The ability to pay is not a factor for consideration. As a result, the court of appeal’s ruling inventing the new “ability to pay” factor was improper.

“Thirteen years ago, California voters adopted Proposition 9, the Victims’ Bill of Rights Act, which included a constitutional amendment to assure that public and victim safety were the primary considerations to be evaluated by a judge when making bail decisions,” said Stapleton. “Courts do not have the power to override that law by mandating an inquiry into a defendant’s ability to pay money bail after its been determined that the defendant should remain detained because he or she is a ‘flight risk’ or a threat to public and victim safety,” she added.

Foundation Associate Attorney Kymberlee Stapleton is available for comment at (916) 446-0345.