In re Humphrey
Undaunted, our Chief Justice, in her 2016 State of the Judiciary Address, told the Legislature it cannot continue to ignore “the question whether or not bail effectively serves its purpose, or does it in fact penalize the poor.” Questioning whether money bail genuinely ensures public safety or assures arrestees appear in court, the Chief Justice suggested that better risk assessment programs would achieve the purposes of bail more fairly and effectively. (Chief Justice Tani Cantil-Sakauye, State of the Judiciary Address, Mar. 8, 2016.) The Chief Justice followed up her address to the Legislature by
This time the Legislature initiated action. Senate Bill No. 10, the California Money Bail Reform Act of 2017, was introduced at the commencement of the current state legislative session. The measure, still before the Legislature, opens with the declaration that “modernization of the pretrial system is urgently needed in California, where thousands of individuals held in county jails across the state have not been convicted of a crime and are awaiting trial simply because they cannot afford to post money bail or pay a commercial bail bond company.” We hope sensible reform is enacted, but if so it will not be in time to help resolve this case.
Meanwhile, as this case demonstrates, there now exists a 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. As we will explain, although the prosecutor presented no evidence that non-monetary conditions of release could not sufficiently protect victim or public safety, and the trial court found petitioner suitable for release on bail, the court‘s order, by setting bail in an amount it was impossible for petitioner to pay, effectively constituted a sub rosa detention order lacking the due process protections
THE PARTIES’ POSITION
Petitioner Kenneth Humphrey was detained prior to trial due to his financial inability to post bail. Claiming bail was set by the court without inquiry or findings concerning either his financial resources or the availability of a less restrictive non-monetary alternative condition or combination of conditions of release, petitioner maintains he was denied rights guaranteed by the Fourteenth Amendment.
Acknowledging that a bail scheme that “might operate unconstitutionally under some conceivable set of circumstances is insufficient to render it wholly invalid” (United States v. Salerno (1987) 481 U.S. 739 at p. 745 (Salerno), petitioner does not claim California‘s money bail system is facially unconstitutional. However, he maintains that requiring money bail as a condition of pretrial release at an amount it is impossible for the defendant to pay is the functional equivalent of a pretrial detention order. (United States v. Leathers (D.C. Cir. 1969) 412 F.2d 169, 171, [“the setting of bond unreachable because of its amount would be tantamount to setting no conditions at all“]; In re Christie (2001) 92 Cal.App.4th 1105, 1109 [“the court may neither deny bail nor set it in a sum that is the functional equivalent of no bail“].) Because the liberty interest of an arrestee is a fundamental constitutional right entitled to heightened judicial protection (id. at p. 750), such an order can be constitutionally justified, petitioner says, only if the state “first establish[es] that it has a compelling interest which justifies the [order] and then demonstrate[s] that the [order is] necessary to further that purpose.”2 (People v. Olivas (1976) 17 Cal.3d 236 at p. 251, citing Serrano v. Priest (1971) 5 Cal.3d 584, 597; In re Antazo (1970) 3 Cal.3d 100, 110-111; Westbrook v. Mihaly (1970) 2 Cal.3d 765, 784-785.) Petitioner argues that in order to do this, the state must show and the court must find that no condition or combination of conditions of release could satisfy the purposes of bail, which are to assure defendants’ appearance at trial and protect victim and public safety.
As no such showing or finding was made, petitioner asks us to issue a writ of habeas corpus and either order his immediate release on his own recognizance or remand the matter to the superior court for an expedited hearing, with instructions to (1) conduct a detention hearing consistent with
In his informal opposition to the petition the Attorney General asked us to deny the petition. Relying upon the “Public Safety Bail” provisions of
However, after we issued an order to show cause, the Attorney General filed a return withdrawing his earlier assertion that the magistrate was not obligated to make any additional inquiry into petitioner‘s ability to pay under the circumstances of this case.
We shall explain why we agree with the parties that the trial court erred in failing to inquire into petitioner‘s financial circumstances and less restrictive alternatives to money bail, and that a writ of habeas corpus should therefore issue for the purpose of providing petitioner a new bail hearing.
FACTS AND PROCEEDINGS BELOW
The Underlying Offenses
Petitioner, a retired shipyard laborer, is 63 years of age and a lifelong resident of San Francisco. On May 23, 2017 (all dates are in that year), at approximately 5:43 p.m., San Francisco police officers responded to 1239 Turk Street regarding a robbery. The complaining witness, Elmer J., who was 79 years of age and used a walker, told the officers he was returning to his fourth floor apartment when a man, later identified as petitioner, followed him into his apartment and asked him about money. At one point petitioner told Elmer to get on the bed and threatened to put a pillow case over his head. When Elmer said he had no money, petitioner took Elmer‘s cell phone and threw it onto the floor. After Elmer gave him $2, petitioner stole $5 and a bottle of cologne and left. Elmer did not know or recognize petitioner. While reviewing the surveillance video with front desk clerks, the officers were informed that the African-American person in the video was petitioner, who lived in an apartment on the third floor of the building. The officers went to petitioner‘s apartment and arrested him without incident. Petitioner was
The Initial Setting of Bail
At his arraignment on May 31, petitioner sought release on his own recognizance without financial conditions based on his advanced age, his community ties as a lifelong resident of San Francisco and his unemployment and financial condition, as well as the minimal property loss he was charged with having caused, the age of the three alleged priors (the most recent of which was in 1992), the absence of a criminal record of any sort for more than 14 years, and his never previously having failed to appear at a court ordered proceeding. Petitioner also invited the court to impose an appropriate stay-away order regarding the victim who, as noted, lived on a different floor of the same “senior home” in which appellant resided.
The prosecutor did not affirmatively argue for pretrial detention pursuant to article 1, section 12, of the California Constitution, but simply asked the court to “follow the PSA [Public Safety Assessment] recommendation, which is that release is not recommended,” and requested bail in the amount of $600,000, as prescribed by the bail schedule, and a criminal protective order directing petitioner to stay away from the victim.
After indicating it had read the Public Safety Assessment Report on petitioner, the trial court stated as follows: “I appreciate the fact that Mr. Humphrey has had a lengthy history of contact here in the City and County of San Francisco. I also note counsel‘s argument that many of his convictions are older in nature; however, given the seriousness of this crime, the vulnerability of the victim, as well as the recommendation from pretrial
Petitioner‘s Motion for a Bail Hearing
On July 10, petitioner filed a motion for a formal bail hearing pursuant to section 1270.25 and an order releasing him on his own recognizance or bail reduction, claiming that “bail, as presently set, is unreasonable and beyond the defendant‘s means” and “violates the Eighth Amendment‘s proscription against excessive bail.”
Relying on In re Christie, supra, 92 Cal.App.4th at page 1109, which prohibits the setting of bail in an amount “that is the functional equivalent of no bail,” and Lopez-Valenzuela v. Arpaio (9th Cir. 2014) 770 F.3d 772, 780-781, which discusses authority for the proposition that criteria warranting pretrial detention “satisfy substantive due process only if they are ‘narrowly tailored to serve a compelling state interest,’ ” petitioner‘s bail motion argued that the substantive due process guarantee of the Fourteenth Amendment entitled him to an individualized determination of his right to be released prior to trial on his own recognizance or bail after he was afforded an opportunity to present evidence relating to any factors that might affect the court‘s decision whether to release him pending trial, and that his guilt may not be presumed during the bail-setting process.
The motion cited extensive statistical studies and other data showing racial disparities in bail determinations in adult criminal and juvenile delinquency proceedings
The motion for a bail hearing also provided considerable information about petitioner‘s family and personal history, particularly the relationship between the murder of his father, with whom he was close, when petitioner was 16 years old, petitioner‘s turn to drugs and subsequent addiction, and his fitful but “life-long” efforts to deal with that problem. While in custody at the San Francisco County Jail from 2005 to 2008, petitioner successfully completed the Roads to Recovery drug rehabilitation program and earned a high school diploma. After he was released from jail petitioner enrolled for nearly two years in San Francisco City College as a participant in the Fresh Start program, and during that period served as mentor for young adults in the community. After serving in that role for seven months, petitioner suffered a relapse that ended his mentoring activities. Near the end of 2015, he voluntarily entered a program called 890 Men‘s Residential, which is administered by the HealthRIGHT 360 family of programs, a “behavioral health services agency that offers a streamlined continuum of comprehensive substance abuse and mental health services.” Petitioner‘s bail motion included a copy of a letter from the HealthRIGHT program verifying that he had “successfully completed treatment on 5/19/2016.”
Petitioner‘s motion also represented that after he committed the charged offenses he was accepted into the Golden Gate for Seniors program, which was administered by Community Awareness & Treatment Services, Inc. (CATS), “a non-profit organization
The Hearing on the Bail Motion
The hearing on petitioner‘s bail motion took place on July 12, five days before the date set for the preliminary hearing. At the start of the proceeding defense counsel provided the court a letter from the Golden Gate for Seniors program stating that it had accepted petitioner for a residential placement commencing on July 13, the next day. After defense counsel said he had “laid out all my points in the bail motion” in detail, he emphasized that petitioner had not engaged in criminal conduct for many years, was 63 years of age, had been battling with addiction since he was a teenager, but had recently “made some significant strides,” and that he took only five dollars and a bottle of cologne from his victim, who was not physically injured. Finally, counsel reiterated that though this was a “three-strikes” case, petitioner‘s prior convictions were very old, the most recent having occurred a quarter of a century ago, in 1992. For the foregoing reasons, defense counsel asked the court to release petitioner on his own recognizance, and failing that to be “OR‘d to Golden Gate for Seniors.”
The prosecutor pointed out that one of petitioner‘s priors was a felony for which he served a prison sentence, and that under section 1275, the court had to find unusual circumstances in order to deviate from the bail schedule. Asserting that there were no
The one-page form risk assessment report submitted to the court by the pretrial services agency, which does not indicate a representative of the agency ever met with petitioner, provides no individualized explanation of its opaque risk assessment of petitioner and no information regarding the availability and potential for use of an unsecured bond, which imposes no costs on the defendant who appears in court, or supervised release programs involving features like required daily or periodic check-ins with the pretrial services agency, drug testing, home detention, electronic monitoring,6 or other less restrictive release options. Nor, so far as the record shows, did the court ask the pretrial services agency to provide any such information.
In explaining its decision, the trial court stated that it had public safety concerns because “this was a serious crime and serious conduct involved and pretty extreme tactics
When the court added an additional condition—that upon release on bail petitioner participate in the Golden Gate for Seniors residential drug treatment program—the public defender observed that petitioner was too poor “to make even $350,000 bail” and would therefore have to remain in custody pending trial and be unable to participate in a residential drug treatment program. The court did not comment on the anomalousness of imposing a condition of release that it made impossible for petitioner to satisfy by setting bail at an unattainable figure.
DISCUSSION
“Habeas corpus is an appropriate vehicle by which to raise questions concerning the legality of bail grants or deprivations. [Citations.] In evaluating petitioner‘s contentions, this court may grant relief without an evidentiary hearing if the return admits allegations in the petition that, if true, justify relief. [Citations.] On the other hand, we may deny the petition, without an evidentiary hearing, if we are persuaded the contentions in the petition are without merit. [Citations.]” (In re McSherry (2003) 112 Cal.App.4th 856, 859-860.)
Where, as here, the material facts of the case are undisputed and ” ‘the application of law to fact is predominantly legal, such as when it implicates constitutional rights and the exercise of judgment about the values underlying legal principles, [the appellate] court‘s review is de novo.’ ” (In re Taylor (2015) 60 Cal.4th 1019, 1035, quoting In re Collins (2001) 86 Cal.App.4th 1176, 1181.)
Petitioner‘s claims that he was denied due process of law and deprived of his personal liberty on the basis of poverty arise under the due process and equal protection clauses of the
I.
The California Bail Process
As noted, the California Constitution contains two sections pertaining to bail: sections 12 and 28 of article I (hereafter section 12 and section 28).
Section 12, like the preceding bail provisions of the California Constitution,8 “was intended to abrogate the common law rule that bail was a matter of judicial discretion by
Subsections (b) and (c) of section 12 provide that a court cannot deny admission to bail to a defendant charged with violent acts or who threatened another with great bodily harm, except on the basis of “clear and convincing evidence” that there is “a substantial likelihood the defendant‘s release would result in great bodily harm to others.” The factors the court must consider in setting the amount of bail are “the seriousness of the
Section 28 establishes and ensures enforcement of 17 rights for victims of criminal acts (art. I, § 28, subds. (f)(1)-(13)), one of which is the right “[t]o have the safety of the victim and the victim‘s family considered in fixing the amount of bail and release conditions for the defendant.” (Art. I, § 28, subd. (b)(3).) With respect to that victim‘s right, subdivision (f)(3) of section 28, entitled “Public Safety Bail,” provides that “[i]n setting, reducing or denying bail, the judge or magistrate shall take into consideration the protection of the public, the safety of the victim, the seriousness of the offense charged, the previous criminal record of the defendant, and the probability of his or her appearing at the trial or hearing of the case. Public safety and the safety of the victim shall be the primary consideration.”
The statutes implementing the constitutional right to bail are set forth in title 10, chapter 1 of the Penal Code. (§§ 1268–1276.5.) Under the statutory scheme, a defendant charged with an offense not punishable with death “may be admitted to bail before conviction, as a matter of right,” and “[t]he finding of an indictment does not add to the strength of the proof or the presumptions to be drawn therefrom.” (§§ 1270.5, 1271.) However, before any person arrested for any specified serious offense may be released on bail in an amount that is either more or less than the amount contained in the schedule of bail for that offense, or may be released on his or her own recognizance, a hearing must be held at which “the court shall consider evidence of past court appearances of the detained person, the maximum potential sentence that could be imposed, and the danger that may be posed to other persons if the detained person is released.” (§ 1270.1, subds. (a) & (c).) In determining whether to release the detained person on his or her own recognizance, “the court shall consider the potential danger to other persons, including threats that have been made by the detained person and any past acts of violence. The court shall also consider any evidence offered by the detained person regarding his or her ties to the community and his or her ability to post bond.” (§ 1270.1, subd. (c).) Where bond is set in a different amount from that specified in the bail schedule, “the judge or
A person detained in custody prior to conviction for want of bail is entitled, no later than five days from the time of the original order fixing bail, to an automatic review of the order fixing the amount of bail on the original accusatory pleading. (§ 1270.2)
Section 1275, which describes the factors judicial officers are obliged to consider in making bail determinations, tracks the exact language of subdivision (f)(3) of section 28 in declaring that “[i]n setting, reducing, or denying bail, a judge or magistrate shall take into consideration the protection of the public, the seriousness of the offense charged, the previous criminal record of the defendant, and the probability of his or her appearing at trial or at a hearing of the case. The public safety shall be the primary consideration.” (§ 1275, subd. (a)(1).) Section 1275 additionally states that “[i]n considering the seriousness of the offense charged, a judge or magistrate shall include consideration of the alleged injury to the victim, and alleged threats to the victim or a witness to the crime charged, the alleged use of a firearm . . . or possession of controlled substances by the defendant.” (§ 1275, subd. (a)(2).) Before a court reduces bail to below the amount established by the applicable bail schedule for specified serious offenses “the court shall make a finding of unusual circumstances and shall set forth those facts in the record.” (§ 1275, subd. (c).)
The only requirement in the bail statutes that a court considering imposition of money bail take into account the defendant‘s financial circumstances is that the court consider “any evidence offered by the detained person” regarding ability to post bond. (§ 1270.1, subd. (c).) Nothing in the statutes requires the court to consider less restrictive conditions as alternatives to money bail.
In the present case, the parties agree that the district attorney did not produce “clear and convincing evidence” that there is “a substantial likelihood” petitioner‘s release “would result in great bodily injury to others” or that petitioner “threatened another with great bodily harm” and “there is a substantial likelihood” he “would carry
II.
The Court Erred in Failing to Inquire Into and Make Findings Regarding Petitioner‘s Financial Ability to Pay Bail and Less Restrictive Alternatives to Money Bail
Petitioner‘s claim that the due process and equal protection clauses of the Fourteenth Amendment required the trial court to determine the availability of less restrictive non-monetary conditions of release that would achieve the purposes of bail is based on two related lines of cases.
The first, exemplified by Bearden v. Georgia (1983) 461 U.S. 660 (Bearden), does not relate to bail directly but more generally to the treatment of indigency in cases in which a defendant is exposed to confinement as a result of his or her financial inability to pay a fine or restitution. These cases establish that a defendant may not be imprisoned solely because he or she is unable to make a payment that would allow a wealthier defendant to avoid imprisonment. In the second line are bail cases, primarily Salerno, supra, 481 U.S. 739, establishing that, because the liberty interest of a presumptively innocent arrestee rises to the level of a fundamental constitutional right, the right to bail cannot be abridged except through a judicial process that safeguards the due process rights of the defendant and results in a finding that no less restrictive condition or combination of conditions can adequately assure the arrestee‘s appearance in court and/or protect public safety, thereby demonstrating a compelling state interest warranting abridgment of an arrestee‘s liberty prior to trial.
A.
The question in Bearden, supra, 461 U.S. 660, was whether the Fourteenth Amendment prohibits a state from revoking an indigent defendant‘s probation for failure to pay a fine and restitution. The court held that the trial court erred in automatically revoking probation on the basis that the petitioner could not pay the fine imposed without determining that he had not made sufficient bona fide efforts to pay or that adequate alternate forms of punishment did not exist. In reaching this result, Justice O‘Connor noted that “[d]ue process and equal protection principles converge” in the Supreme Court‘s analysis in cases involving the treatment of indigents in the criminal justice system, but the court “generally analyze[d] the fairness of relations between the criminal defendant and the State under the Due Process Clause, while we approach the question whether the State has invidiously denied one class of defendants a substantial benefit available to another class of defendants under the Equal Protection Clause.” (Id. at p. 665, citing Ross v. Moffit (1974) 417 U.S. 600, 608-609.)
Justice O‘Connor pointed out, however, that in order to determine whether the differential treatment violates the equal protection clause, “one must determine whether, and under what circumstances, a defendant‘s indigent status may be considered in the decision whether to revoke probation. This is substantially similar to asking directly the due process question of whether and when it is fundamentally unfair or arbitrary for the State to revoke probation when an indigent is unable to pay the fine. Whether analyzed in terms of equal protection or due process, the issue cannot be resolved by resort to easy slogans or pigeonhole analysis, but rather requires a careful inquiry into such factors as
In imposing a judicial responsibility to inquire into the financial circumstances of an allegedly indigent defendant, the Bearden court relied heavily on the reasoning of its earlier opinions in Williams v. Illinois (1970) 399 U.S. 235 (Williams) and Tate v. Short (1971) 401 U.S. 395 (Tate), both of which advanced the process of mitigating the disparate treatment of indigents in the criminal justice system initially set in motion by Griffin v. Illinois (1956) 351 U.S. 12 and Douglas v. California (1963) 372 U.S. 353.
In Williams the indigent defendant was convicted of petty theft and given the maximum possible sentence of one year imprisonment and a $500 fine. As permitted under an Illinois statute, the judgment directed that in the event of nonpayment of the fine, the defendant was to remain in jail to pay off the obligation at the rate of five dollars per day. The Supreme Court struck the statute as applied to the defendant, holding that “once the State has defined the outer limits of incarceration necessary to satisfy its penological interests and policies, it may not then subject a certain class of convicted defendants to a period of imprisonment beyond the statutory maximum solely by reason of their indigency.” (Williams, supra, 399 U.S. at pp. 241-242.) Tate was a similar case except that the statutory penalty permitted only a fine.
The rule the Bearden court distilled from Williams and Tate is that the state “cannot ’ “[impose] a fine as a sentence and then automatically [convert] it into a jail term solely because the defendant is indigent and cannot forthwith pay the fine in full.” ’ [(Tate, supra, 401 U.S. at p. 398.)] In other words, if the State determines a fine or restitution to be the appropriate and adequate penalty for the crime, it may not thereafter imprison a person solely because he lacked the resources to pay it. Both Williams and Tate carefully distinguished this substantive limitation on the imprisonment of indigents from the situation where a defendant was at fault in failing to pay the fine.” (Bearden, supra, 461 U.S. at pp. 667-668.)
As Bearden explained, the Fourteenth Amendment ameliorates, even if it does not cure, the differential treatment it protects against by mandating careful and consequential judicial inquiry into the circumstances. A probationer who willfully refuses to pay a fine or restitution despite having the means to do so, or one who fails to “make sufficient bona fide efforts to seek employment or borrow money in order to pay the fine or restitution,” may be imprisoned as a “sanction to enforce collection” or “appropriate penalty for the offense.” (Bearden, supra, 461 U.S. at p. 668.) “But if the probationer has made all reasonable efforts to pay the fine or restitution, and yet cannot do so through no fault of his own, it is fundamentally unfair to revoke probation automatically without considering
Bearden, of course, was dealing with the issue of inability to pay in the context of individuals already convicted and sentenced. Because it was concerned with fines and restitution, the Bearden court discussed the measures necessary to satisfy the State‘s interests in punishment and deterrence. The issues are different in the pretrial bail context. Here the relevant governmental interests are ensuring a defendant‘s presence at future court proceedings and protecting the safety of victims and the community. The liberty interest of the defendant, who is presumed innocent, is even greater; consequently, as will be further explained, it is particularly important that his or her liberty be abridged only to the degree necessary to serve a compelling governmental interest. (See Lopez-Valenzuela v. Arpaio, supra, 770 F.3d at p. 779; Salerno, supra, 481 U.S. at pp. 749-750, 755.) When money bail is imposed to prevent flight, the connection between the condition attached to the defendant‘s release and the governmental interest at stake is obvious: If the defendant fails to appear, the bail is forfeited. (§§ 1269b, subd. (h); 1305, subd. (a).) A defendant who is unable to pay the amount of bail ordered—assuming appropriate inquiry and findings as to the amount necessary to protect against flight—is detained because there is no less restrictive alternative to satisfy the governmental interest in ensuring the defendant‘s presence. (See United States v. Mantecon-Zayas (1st Cir. 1991) 949 F.2d 548, 550; Brangan v. Commonwealth (Mass. 2017) 80 N.E.3d 949, 960, 963.)11 Money bail, however, has no logical connection to protection of the public, as
Bearden and its progeny “‘stand for the general proposition that when a person‘s freedom from governmental detention is conditioned on payment of a monetary sum, courts must consider the person‘s financial situation and alternative conditions of release when calculating what the person must pay to satisfy a particular state interest.’ Otherwise, the government has no way of knowing if the detention that results from failing to post a bond in the required amount is reasonably related to achieving that interest.” (Hernandez v. Sessions (9th Cir. 2017) 872 F.3d 976, 992-993.)
The principles enunciated in Bearden, Williams, and Tate have been rigorously enforced by the courts of this state.
In In re Antazo, supra, 3 Cal.3d 100, the two defendants were convicted of arson, and the trial court suspended imposition of sentence upon the condition, among others, that each pay a fine of $2,500 plus a penalty assessment of $625 or, in lieu of payment, serve one day in jail for each $10 unpaid. One defendant paid the fine and assessment and was released. The other defendant, Antazo, was indigent and unable to pay, and was therefore incarcerated. Discharging Antazo from custody, the Supreme Court stated as
The court of appeal adopted the same reasoning in In re Young (1973) 32 Cal.App.3d 68, in which the petitioner challenged the denial of prison credit for presentence detention that resulted solely from his indigency. The court held that as applied to an indigent defendant who could not afford bail, a statute providing that a prison term commences on delivery of the defendant to prison “operates to create an unconstitutional discrimination and results in overall confinement of persons who are convicted of the same crime who are able to afford bail and so secure liberty and those who cannot do so and are confined. Although the presentence jail time may not be ‘punishment’ as defined by the Penal Code, it is a deprivation of liberty. The additional deprivation suffered only by the indigent does not meet federal standards of equal protection . . . .” (Id. at p. 75; accord, People v. Kay (1973) 36 Cal.App.3d 759, 763 [holding that “[a]n indigent defendant cannot be imprisoned because of his inability to pay a fine, even though the fine be imposed as a condition of probation” and instructing the trial court on remand to take into consideration the “present resources of appellants and . . . their prospects” when determining their restitution payments].)
Turning to the present case, petitioner asserts and it is undisputed that he was detained prior to trial due to his financial inability to post bail in the amount of $350,000, an amount that was fixed by the court without consideration of either his financial circumstances or less restrictive alternative conditions of release. The court‘s error in
B.
Salerno, supra, 481 U.S. 739, which petitioner relies heavily upon, upheld the constitutionality of the federal
The Bail Reform Act amended federal law by authorizing courts to make release decisions that not only consider the likelihood an arrestee might flee, as under prior law, but also “give appropriate recognition to the danger a person may pose to others if released.” (Salerno, supra, 481 U.S. at p. 742.)14 Although the federal bail system is not based on secured money bail, petitioner relies upon Salerno because of the heavy emphasis the opinion places on the extensive safeguards mandated by the Bail Reform Act to assure the accuracy of a judicial assessment that the release of a particular arrestee would endanger public safety. These safeguards, which the court relied upon in
The defendants in Salerno were charged with 35 acts of racketeering activity, including fraud, extortion, gambling and conspiracy to commit murder. At their arraignment, the government moved to have them detained prior to trial on the ground that “no condition of release would assure the safety of the community or any person,” and made a detailed proffer of evidence that, among other things, respondents had engaged in wide-ranging conspiracies to aid their illegal enterprises through violent means, and Salerno had personally participated in two murder conspiracies. (Salerno, supra, 481 U.S. at p. 743.)
The trial court granted the government‘s detention motion after concluding that the government had established by clear and convincing evidence that “no condition or combination of conditions will reasonably assure the appearance of the person as required and the safety of any other person and the community,” the determinations necessary to order an arrestee‘s detention under the Bail Reform Act. (Salerno, supra, 481 U.S. at pp. 743-744.) The Court of Appeals reversed, finding the Bail Reform Act‘s ” ‘authorization of pretrial detention [on the ground of future dangerousness] repugnant to the concept of substantive due process, which we believe prohibits the total deprivation of liberty simply as a means of preventing future crimes.’ [Citation.] The [Court of Appeals] concluded that the Government could not, consistent with due process, detain persons who had not been accused of any crime merely because they were thought to present a danger to the community.” (Salerno, at p. 744.)
Rejecting that conclusion, the Supreme Court reasoned that the pretrial detention authorized by the Bail Reform Act is not impermissible punishment but a regulatory measure designed to protect community safety that is constitutionally justified by the “legitimate and compelling” government interest in preventing crime committed by arrestees. (Salerno, supra, 481 U.S. at p. 749.) In appropriate circumstances, the court declared, such detention can outweigh an arrestee‘s liberty interest. (Id. at pp. 747-752.)
As an en banc panel of the Ninth Circuit has observed, Salerno “concluded that the Bail Reform Act satisfied heightened scrutiny because it both served a ‘compelling’ and ‘overwhelming’ governmental interest ‘in preventing crime by arrestees’ and was ‘carefully limited’ to achieve that purpose,” and “sufficiently tailored because it ‘careful[ly] delineat[ed] . . . the circumstances under which detention will be permitted.’ ” (Lopez-Valenzuela v. Arpaio, supra, 770 F.3d at p. 779.)
The Ninth Circuit went on to note that “[i]f there was any doubt about the level of scrutiny applied in Salerno, it has been resolved in subsequent Supreme Court decisions, which have confirmed that Salerno involved a fundamental liberty interest and applied heightened scrutiny. See [Reno v.] Flores [(1993)] 507 U.S. [292,] 301-02 . . . (O‘Connor, J. concurring); Foucha v. Louisiana [(1992)] 504 U.S. 71, 80-83 (Kennedy, J. dissenting). Salerno and the cases that have followed it have recognized that ‘[f]reedom
Because the federal bail scheme at issue in Salerno is not a money-bail system, the court had no need to address the issues presented by such a system when the applicant for bail is indigent or impecunious. Turner v. Rogers (2011) 564 U.S. 431 (Turner) is instructive in this regard. Turner addressed the question whether a father facing the possibility of incarceration for civil contempt due to his inability to pay a child support order had a right to court-appointed counsel. Noting that the proceeding was civil and therefore required “fewer procedural protections than in a criminal case” (id. at p. 442), the court “determine[d] the ‘specific dictates of due process’ by examining the ‘distinct factors’ that this Court has previously found useful in deciding what specific safeguards the Constitution‘s Due Process Clause requires in order to make a civil proceeding fundamentally fair,” namely, “(1) the nature of ‘the private interest that will be affected,’ (2) the comparative ‘risk’ of an ‘erroneous deprivation of that interest with and without
Turner recognized that the gravity of “the private interest that will be affected” argued strongly for the right to counsel. An indigent defendant‘s loss of personal liberty through imprisonment demands due process protection, the court declared, because “[t]he interest in securing that freedom, the freedom ‘from bodily restraint,’ lies at the core of the liberty protected by the Due Process Clause.” (Turner, supra, 564 U.S. at p. 445, quoting Foucha v. Louisiana, supra, 504 U.S. at p. 80.) The court ultimately found this interest outweighed by a combination of three considerations that militated against an automatic right to state-provided counsel in civil proceedings that might result in imprisonment. One of those considerations is particularly significant for our purposes: the availability of “a set of ‘substitute procedural safeguards’ Mathews, [supra,] 424 U.S. at 335 . . . , which, if employed together, can significantly reduce the risk of an erroneous deprivation of liberty . . . without incurring some of the drawbacks inherent in recognizing an automatic right to counsel.” (Turner, supra, 564 U.S. at p. 447.)15 Those safeguards included “(1) notice to the defendant that his ‘ability to pay’ is a critical issue in the contempt proceeding; (2) the use of a form (or the equivalent) to elicit relevant financial information; (3) an opportunity at the hearing for the defendant to respond to statements and questions about his financial status (e.g., those triggered by his responses on the form); and (4) an express finding by the court that the defendant has the ability to pay.” (Id. at pp. 447-448.) The court made it clear that the “alternative procedural
A determination of ability to pay is critical in the bail context to guard against improper detention based only on financial resources. Unlike the federal Bail Reform Act,16 however, our present bail statutes only require a court to consider a defendant‘s ability to pay if the defendant raises the issue. (
The Bearden line of cases, together with Salerno and Turner, compel the conclusion that a court which has not followed the procedures and made the findings required for an order of detention must, in setting money bail, consider the defendant‘s ability to pay and refrain from setting an amount so beyond the defendant‘s means as to result in detention.
If the court concludes that an amount of bail the defendant is unable to pay is required to ensure his or her future court appearances, it may impose that amount only upon a determination by clear and convincing evidence that no less restrictive alternative will satisfy that purpose. We believe the clear and convincing standard of proof is the appropriate standard because an arrestee‘s pretrial liberty interest, protected under the due process clause, is “a fundamental interest second only to life itself in terms of constitutional importance.” (Van Atta v. Scott (1980) 27 Cal.3d 424, 435; see Santosky v. Kramer (1982) 455 U.S. 745. 756 [“This court has mandated an intermediate standard of proof—‘clear and convincing evidence‘—when the individual interests at stake in a state proceeding are both ‘particularly important’ and ‘more substantial than mere loss of money’ “]; Addington v. Texas (1979) 441 U.S. 418, 427 [“the individual‘s interest in the outcome of a civil commitment proceeding is of such weight and gravity that due process requires the state to justify confinement by proof more substantial than a mere preponderance of the evidence“];
Another protection that Salerno identified in the federal Bail Reform Act and Turner discussed, express findings and statements of decision (Salerno, supra, 481 U.S. at p. 752; Turner, supra, 564 U.S. at p. 447), is also of particular importance in ensuring that orders for release on bail do not become de facto detention orders. Although our bail
Podesto upheld
Pipinos, supra, 33 Cal.3d 189, found insufficient a trial court‘s statement that the defendant‘s bail application was denied because he posed a ” ‘substantial flight risk,’ ” represented ” ‘some risk to society,’ ” and did not have a ” ‘substantial likelihood of
With respect to the likelihood of flight, the Pipinos court considered the factors noted in Podesto: “Because the primary purpose of bail is assurance of continued attendance at future court proceedings [citation], a defendant to qualify for release on appeal must satisfactorily demonstrate that the likelihood of his flight is minimal in light of the following three criteria: ‘(1) the defendant‘s ties to the community, including his employment, the duration of his residence, his family attachments and his property holdings; (2) the defendant‘s record of appearance at past court hearings or of flight to avoid prosecution; and (3) the severity of the sentence defendant faces.’ ” (Pipinos, supra, 33 Cal.3d at p. 199, quoting Podesto, supra, 15 Cal.3d at pp. 934-935.) Pipinos satisfied the first two criteria, but the trial court was ” ‘persuaded that he wouldn‘t give much pause to flee,’ ” solely on the ground that he faced a four-year prison term. This was improper, the Supreme Court stated, because Podesto requires that one factor be weighed against the others, “and the court‘s failure to mention the other factors . . . does not permit us to review in what manner, if at all, it balanced defendant‘s community ties and record of court appearances against the incentive to flight suggested by the prison term.’ ” (Pipinos, at p. 199.) This balancing is required because “otherwise denial of bail would be proper in any case in which a prison term is imposed, regardless of offsetting factors presented by defendant.” (Id. at p. 200.) Additionally, the absence of balancing
Pipinos also concluded the trial court‘s finding that the defendant was a ” ‘danger to society’ ” was “deficient with respect to providing a basis for meaningful review and guarding against careless decisionmaking.” (Pipinos, supra, 33 Cal.3d at p. 200.) The trial court did “not expressly state that there is a probability that defendant will continue to engage in criminal conduct. Instead, the court obliquely refers to defendant‘s ‘basic character flaws,’ and bases its conclusion of danger to society on the fact that there is no evidence of a ‘metamorphosis.’ We may conceivably infer that the court found, based on its assessment of defendant‘s character, that it was unlikely that defendant would forego his profitable trafficking in controlled substances. However, a primary purpose of the Podesto requirement of a statement is precisely to prevent this type of speculative judicial second-guessing, especially when, as here, we are asked to draw inferences as to inferences the trial court might have drawn.” (Ibid.) “Because of the court‘s failure to articulate its reasons for finding defendant a danger to the community, we cannot ascertain the manner in which the court exercised its discretion. We do not know if the denial of bail was based upon the circumstances and propensities of the individual defendant, or whether it was based upon precisely the generalizations of future criminality Podesto‘s standards were meant to prevent. Podesto urges caution in denying bail based on the propensities of the defendant and warns courts ‘not [to] adopt an ironclad, mechanical policy of denying bail to all who commit a particular crime.’ [Citations.]” (Id. at p. 201.)
The trial court in the present case explained its reasons to the extent required by the bail statutes, which was only to explain that it found petitioner‘s community ties and willingness to engage in treatment constituted “unusual circumstances” justifying deviation from the bail schedule. (
III.
Bail Determinations Must be Based upon Consideration of Individualized Criteria
Failure to consider a defendant‘s ability to pay before setting money bail is one aspect of the fundamental requirement that decisions that may result in pretrial detention must be based on factors related to the individual defendant‘s circumstances. This requirement is implicit in the principles we have discussed—that a defendant may not be imprisoned solely due to poverty and that rigorous procedural safeguards are necessary to assure the accuracy of determinations that an arrestee is dangerous and that detention is required due to the absence of less restrictive alternatives sufficient to protect the public.
Stack, supra, 342 U.S. 1, illustrates the significance of individualized bail determinations (a point subsequently reiterated in Salerno, supra, 481 U.S. at p. 750). The 12 petitioners in Stack were charged with conspiring to violate the Smith Act, which made it a criminal offense to advocate the violent overthrow of the government or to organize or be a member of any group devoted to such advocacy. (Stack, at p. 3.) After bail was fixed in the uniform amount of $50,000 for each petitioner, they moved to
The only evidence presented by the government was a showing that four persons previously convicted under the Smith Act in a federal court in another state had forfeited bail. Noting that petitioners were exposed to imprisonment for no more than five years and a fine of not more than $10,000, and that the government did not deny bail had been fixed in a sum much higher than that usually imposed for offenses with like penalties, the court questioned the government‘s failure to make any factual showing justifying the unusually high amount of bail uniformly fixed for each of the four petitioners. “Since the function of bail is limited, the fixing of bail for any individual defendant must be based upon the standards relevant to the purpose of assuring the presence of that defendant. . . .” (Stack, supra, 342 U.S. at p. 5, italics added.) As Justice Jackson observed, “[e]ach defendant stands before the bar of justice as an individual. Even on a conspiracy charge[,] defendants do not lose their separateness or identity. . . . The question when application for bail is made relates to each one‘s trustworthiness to appear for trial and what security will supply reasonable assurance of his appearance.” (Id. at p. 9, conc. opn. of Jackson, J.)
The $600,000 bail initially ordered in this case was prescribed by the county bail schedule, which was also the anchor for the $350,000 reduced bail order.19 Bail
Despite the widespread criticism of bail schedules, setting bail in the amount prescribed by the bail schedule remains the default position in this state,25 and the practice may well be encouraged by the fact that by declining to depart from the bail schedule a court relieves itself of the statutory duty to state reasons. (See
In the present case, as we have said, the prosecution did not present any evidence, let alone clear and convincing evidence, to establish that “no condition or combination of conditions of release would ensure the safety of the community or any person” (Salerno, supra, 481 U.S. at pp. 743-744), thereby justifying abridgment of petitioner‘s liberty interest while awaiting trial. To the contrary, the prosecution did not dispute that any risk petitioner posed to victim and public safety could be sufficiently mitigated with the conditions of release the court imposed, and the court, by ordering petitioner‘s release on money bail with these conditions, implicitly so found. The conditions requiring petitioner to participate in the supervised residential drug treatment program and to stay away from the victim, addressed the particular circumstances of petitioner and the offense, but the bail amount was based solely on the bail schedule rather than any individualized inquiry into the amount necessary to satisfy the purposes of money bail in this case. And while the court attempted to acknowledge petitioner‘s circumstances by lowering the initially set amount of bail, the reduction from $600,000 to $350,000 was ineffectual. The reduction could be meaningful only if the court had reason to believe it possible for petitioner to post bail in the lower amount; but the court did not find or explain such a possibility, and the record suggests that, as defense counsel stated, petitioner was no more able to post bail in the amount of $350,000 than he was to post bail in the amount of $600,000. Nothing in the record suggests petitioner‘s claim of indigency was not bona fide, and neither the district attorney nor the court questioned the veracity of the claim. The court thus reached the anomalous result of finding petitioner suitable for release on bail but, in effect, ordering him detained (and therefore rendering
IV.
The Relief to Which Petitioner is Entitled
As we have said, two provisions of the California Constitution bear on the issue of pretrial release on bail: Section 12, establishing the right to pretrial release on bail except in enumerated circumstances, and section 28, making victim and public safety the primary consideration in bail decisions. Section 12, which addresses only the subject of bail, limits the cases in which a defendant is not entitled to release to those involving capital crimes or involving certain other felonies if it is established by clear and convincing evidence that release would result in a substantial likelihood of great bodily harm to others. Section 28 establishes a number of rights for crime victims, one of which is the right to have the victim‘s safety considered in “fixing the amount of bail and release conditions for the defendant” (
The Attorney General, in his return to the order to show cause, argued that these provisions should be “reconcile[d]” by interpreting section 28 as requiring courts to make public safety and safety of the victim the primary considerations in decisions to deny bail, set the amount of bail or release a defendant on his own recognizance, but “not to the extent of completely displacing section 12‘s bail provisions.” The Attorney General maintained that section 28‘s emphasis on safety considerations applied to setting both the amount of money bail and nonmonetary conditions of release, rejecting petitioner‘s view that the only relevant consideration in setting money bail (as opposed to nonmonetary conditions of release) is risk of flight.27 Petitioner urged that there is no need for us to
For the first time at oral argument, in his second change of position in this case, the Attorney General advanced the view that section 28 authorizes a court to impose a higher amount of money bail on a defendant found to present a risk to public or victim safety than on one who presented no such risk. Stating that his position had “come into greater clarity” over the course of other litigation in the time since the return in this case was filed, the Attorney General further maintained that defendants who would be entitled to bail under section 12 because they are not charged with capital crimes or, under subdivisions (b) or (c) of that section, found by clear and convincing evidence to have a substantial likelihood of inflicting great bodily harm on others, may be found to present a risk to victim or public safety by a preponderance of the evidence and detained prior to trial if they are unable to afford bail and no less restrictive condition of release is adequate to protect public safety. The Attorney General also maintained that a defendant may be detained under section 28 solely to protect against flight. The Attorney General acknowledged that this view of section 28 would effectively eviscerate section 12.
V.
Closing Observations
We are not blind to the practical problems our ruling may present. The timelines within which bail determinations must be made are short, and judicial officers and pretrial service agencies are already burdened by limited resources.
But the problem this case presents does not result from the sudden application of a new and unexpected judicial duty; it stems instead from the enduring unwillingness of our society, including the courts (see, e.g., Foote, The Coming Constitutional Crisis in
The problem, as our Chief Justice has shown, requires the judiciary, not just the Legislature, to change the way we think about bail and the significance we attach to the bail process. Though legislation is desperately needed, administration of the bail system is committed to the courts. It will be hard, perhaps impossible, for judicial officers to fully rectify the bail process without greater resources than our trial courts now possess. Nevertheless, the highest judicial responsibility is and must remain the enforcement of constitutional rights, a responsibility that cannot be avoided on the ground its discharge requires greater judicial resources than the other two branches of government may see fit to provide. Judges may, in the end, be compelled to reduce the services courts provide, but in our constitutional democracy the reductions cannot be at the expense of presumptively innocent persons threatened with divestment of their fundamental constitutional right to pretrial liberty.
DISPOSITION
The bail determination is reversed, and the matter is remanded for further proceedings consistent with this opinion.
Kline, P.J.
We concur:
Stewart, J.
Miller, J.
Trial Court: San Francisco County Superior Court
Attorneys for Petitioner: Civil Rights Corps
Alec Karakatsanis
Jeff Adachi,
San Francisco Public Defender
Matt Gonzalez
Chief Attorney
Paul Myslin
Deputy Public Defender
Attorneys for Respondent: Attorney General of California
Xavier Becerra
Gerald A. Engler
Chief Assistant Attorney General
Jeffrey M. Laurence
Senior Assistant Attorney General
Seth K. Schalit
Supervising Deputy Attorney General
Katie L. Stowe
Deputy Attorney General
Notes
“A person shall be released on bail by sufficient sureties, except for:
(a) Capital crimes when the facts are evident or the presumption great;
(b) Felony offenses involving acts of violence on another person, or felony sexual assault offenses on another person, when the facts are evident or the presumption great and the court finds based upon clear and convincing evidence that there is a substantial likelihood the person‘s release would result in great bodily harm to others; or
(c) Felony offenses when the facts are evident or the presumption great and the court finds based on clear and convincing evidence that the person has threatened another with great bodily harm and that there is a substantial likelihood that the person would carry out the threat if released.
Excessive bail may not be required. In fixing the amount of bail, the court shall take into consideration the seriousness of the offense charged, the previous criminal record of the defendant, and the probability of his or her appearing at the trial or hearing of the case.
A person may be released on his or her own recognizance in the court‘s discretion.”
Petitioner‘s counsel also noted that “nothing on the face of the bail schedule required this computation of money bail. The bail schedule contains no instruction on how financial conditions of release should be calculated, including whether money bail should be ‘stacked’ or whether prior convictions from the same date should be counted separately or together for the purpose of adding bail enhancements. The schedule offers no instructions for what to do when the presence of a victim would form the basis for several enhancements, one due to the victim‘s presence and another due to the victim‘s age.”
An analysis of 2000-2009 data from the US Department of Justice reveals that California‘s large urban counties “relied more heavily on pretrial detention of felony defendants (59% detained), compared with other large urban counties in the United States (32% detained), even after accounting for differences in the composition of defendants. But the state still had higher rates of failure to appear in court and higher levels of felony rearrests during the pretrial period.” (Tafoya et al., Pretrial Release in California (May 2017) Public Policy Institute of California, p. 5.)
Subsequently, section 28 was enacted in 2008 as Proposition 9 (the “The Victims’ Bill of Rights Act of 2008“).
The Attorney General agreed in his return to the order to show cause that because Proposition 9 did not eliminate the longstanding right to bail under section 12, its passage in 2008 did not impliedly repeal the right to bail under section 12. (In re Lance W. (1985) 37 Cal.3d 873, 886 [presumption against repeal obliges courts to reconcile conflicts between constitutional provisions to avoid implying that later enacted provision repeals another existing provision]). The Attorney General pointed out that the proposed repeal of section 12 in Proposition 8 was the reason Propositions 4 and 8 were found contradictory when enacted in 1982. As explained in People v. Standish, supra, 38 Cal.4th at pages 876-878, Proposition 9 did not mention section 12, and the ballot pamphlet that year did not suggest that the public safety bail provision proposed by Proposition 9 was incompatible in any way with the right to bail provided by section 12.