A month after the California Supreme Court decided to review a landmark decision on bail reform, the San Francisco Public Defender’s Office on Monday called for the decision to remain enforceable across the state.
Deputy Public Defender Chesa Boudin requested an order from the court finding that the decision remains binding despite the review. The appellate court decision said that California judges must consider a defendant’s ability to pay as well as alternatives to jail when setting bail.
Since the Supreme Court agreed to take up the so-called Humphrey decision at the request of District Attorney George Gascon, himself a proponent of bail reform who sought to clarify the decision, Boudin said “trial courts across the state are now taking widely divergent approaches to bail hearings.”
“While many follow Humphrey’s core holdings,” Boudin wrote, “Others have used this court’s grant of review as a basis to return to the practice of requiring secured financial conditions of release without any inquiry into or findings concerning an arrestee’s ability to pay and less-restrict conditions of release.”
The decision stemmed from the case of Kenneth Humphrey, a San Francisco man held on $350,000 bail for nearly a year because he could not afford to pay. Humphrey is accused of stealing a $5 bottle of cologne from his elderly neighbor and threatening to smother him with a pillowcase last year.
In January, the First District Court of Appeal made the precedent-setting decision and ordered a new bail hearing for Humphrey.
When it agreed to review the decision last month, the Supreme Court said the justices would answer three questions, including whether the appeals court made the decision in error and whether public safety can be considered when setting bail.
The third question addresses under which of two sections of the California Constitution, if either, a defendant could be denied bail to ensure public safety. This question is the sticking point for Gascon and Public Defender Jeff Adachi, who brought the Humphrey case to the appellate court.
“The Court of Appeal recognized the inequities inherent in California’s monetary bail system, but its ruling was effectively silent as to how a court can adequately carry out its obligation to safeguard public safety in determining whether to release a defendant prior to trial,” Gascon’s office said in a filing Thursday.
Article 1, Section 12 allows for defendants to be released on bail unless they have been charged with a capital crime, violent or sexually violent felony where there is a threat to the public, or a felony and have made criminal threats.
Gascon’s office argued for detaining defendants without bail under Article 1, Section 28. This section allows judges to denial bail when considering the safety of the public and a victim.
Gascon’s office claimed Section 28 is specific and “provides the court with means to detain violent felons.”
But Boudin described Section 28 as “so general” and “so broad.”
Boudin said the section requires a lower standard of proof to detain a defendant without bail and does not mention particular non-capital crimes like Section 12, meaning that it “arguably could be used to detain a shoplifter with no bail.”
“The district attorney is seeking significantly expanded powers to detain people pretrial with no bail,” Boudin said. “Our view is that Section 12 provides the only exceptions to the requirement that someone be released from custody.”
The Public Defender’s Office and a Washington-based nonprofit called Civil Rights Corps are expected to respond to Gascon’s filing around August. The California Supreme Court is not likely to make a decision until next year.