In re Humphrey - Bail/OR Release

Today, the California Supreme Court filed a case drastically changing how courts are supposed to evaluate defendants for OR/Bail. (In re Humphrey S247278, filed 3/25/2021)

The court found that in order to hold a defendant pre-trial, that court must find by clear and convincing evidence that defendant's appearance or public safety cannot be reasonably assured by nonfinancial conditions of release (e.g. electronic monitoring, supervision by pretrial services, community housing or shelter, stay-away orders, and drug and alcohol testing and treatment).

And If the court concludes that money bail is reasonably necessary, then the court must consider the individual arrestee’s ability to pay, along with the seriousness of the charged offense and the arrestee’s criminal record, and — unless there is a valid basis for detention — set bail at a level the arrestee can reasonably afford.

What this means is that there is no more presumption that the defendant is guilty for the purpose of setting bail. The prosecutor has to prove by clear and convincing evidence that if released, the person is a flight risk or danger to the public. Otherwise, the court must find a less restrictive alternative, as suggested above (electronic monitoring, for example). Even if the judge determines that the person is a danger or flight risk, a reasonable bail must be set, in accordance with the ability to pay, not some preconceived, one-size-fits-all, county-generated bail schedule.

A bail schedule is all well and good pending arraignment, I don’t see any change in that. But once it’s time for a judge to consider bail - and that should be done at the initial arraignment - the prosecutor will have to prove (by clear and convincing, not reasonable doubt), that defendant is a danger or a flight risk. Otherwise, a defendant should be released on a promise to appear. This is regardless of the seriousness of the charges. Capital cases, meaning charges that carry the death penalty, are the sole exception.