The Humphrey Decision: Justice or Pandora’s Box
“Excessive bail shall not be required, nor excessive fines imposed, nor cruel and unusual punishments inflicted.”
The California Constitution can give people more rights but not less rights than the U.S. Constitution
On April 28, 2016, Keith Green, an aspiring chef and father of two young girls, disappeared. Just prior to his disappearance, Green met his estranged girlfriend, Tiffany Li, to discuss child custody. The next day, Green’s phone was located in Golden Gate Park. His body was found two weeks later. He had died slowly from a single gunshot to the neck. Li, her Norteño-affiliated boyfriend and his body builder buddy were arrested and charged with Green’s murder. The San Mateo court set Li’s bail at $35 million and within days, Tiffany secured her release by posting $70 million in property posted by family and friends as bail collateral.
A year later, a far different fate awaited lifelong San Francisco resident, Kenneth Humphrey. Prosecutors accused Humphrey of following an elderly neighbor into his residential hotel room and stealing $5 and a bottle of cologne. Public Defender Paul Myslin argued that his client, a retired shipyard laborer, had lived crime free for over 14 years and should be released to a residential addiction treatment center. The court disagreed and set bail at $ 350,000. For the indigent Mr. Humphrey, this was tantamount to no bail at all.
Penal Code section 1269b (c) requires “the superior court judges in each county to prepare, adopt, and annually revise a uniform countywide schedule of bail.” The San Francisco Court’s bail schedule set $600,000 for a case such as Mr. Humphrey’s. Penal Code section 1275(c) requires that before a court reduces bail below that level “the court shall make a finding of unusual circumstances and shall set forth those facts in the record.” In Mr. Humphrey’s case, the court was “merciful” because it cut the bail almost in half. But in reality, simply because there was probable cause to arrest him, Mr. Humphrey had already started serving his jail sentence.
Article I, Section 28 section (f)(3) of the California Constitution requires that the court consider “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.” But public safety was not the basis for Mr. Humphrey’s detention, a lack of funds was the sole barrier to his release to a needed addiction program. In court and in its habeas corpus petition, the San Francisco Public Defender’s office argued that a bond set without consideration of Mr. Humphrey’s ability to pay violated the 14th Amendment’s guarantees of equal protection and due process.
This argument already had strong judicial support. In 2016, Chief Justice Tani Cantil-Sakauye told the State Legislature that it cannot continue to ignore “the question whether or not bail effectively serves its purpose, or does it in fact penalize the poor.” (Chief Justice, State of the Judiciary Address, Mar. 8, 2016 as cited in Humphrey at 1013-14). Despite the Chief Justice’s urging, the Legislature took no action, and the issue received little media attention until the 1st DCA granted Mr. Humphrey’s habeas petition.
Justice Kline wrote the opinion and included an extensive review of the historic right to pretrial release under both state and federal constitutional law. He cited California Constitution Article I, Section 12 stating that this section “‘was intended to abrogate the common law rule that bail was a matter of judicial discretion by conferring an absolute right to bail except in a narrow class of cases.’” (citations omitted) (Humphrey at 1022)
Justice Kline cited federal circuit and Supreme Court decisions for the point 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…” (Humphrey at 1025)
The 1st District Court of Appeals ordered Superior Court Judge Joseph M. Quinn to reassess bail by “inquiring into and making findings regarding petitioner’s ability to pay” as well as to assess alternatives to money bail. If petitioner’s financial resources would be insufficient to post bail such that the order would result in his pretrial detention, the order directed the Superior Court to make “findings necessary for a valid order of detention.” Humphrey at 1048
The arbitrary nature of the current bail system was highlighted when, on August 25, 2017, just three weeks after Mr. Humphrey filed his petition, the same Hon. Joseph M. Quinn, granted release to accused child predator Jose Olivares-Parada on his own recognizance. Parada was accused of sending pornography to, and arranging a meeting with a minor. 
There are unwritten priorities that govern the bail process. Prosecutors usually favor pretrial incarceration because an incarcerated defendant will not commit additional crimes pending case resolution. A prosecutor’s duty is to protect the public and further justice. Article I, Section 28 of the California Constitution requires the court to focus on the safety of the victim and the victim’s family when setting the amount of bail and release conditions for the defendant. The difficulty is balancing public protection with core concepts of “innocent until proven guilty,” the fundamental right to bail under Article I, section 12 of the California Constitution and the Eighth Amendment’s proscription against excessive bail.
Justice Kline framed the balance this way:
“[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.” Humphrey at 1026) Other considerations may be in play. In his opinion, Justice Kline noted that pretrial confinement may “‘…undermine his “ability to assist in preparation of his defense’” Humphrey at 1032 quoting Gerstein v. Pugh (1975) 420 U.S. 103, 114)
There is little correlation between the dollar amount of the bond and whether or not a person commits additional crimes. If bail is made, a subsequent criminal act simply revokes the bail. It does not forfeit the bail. To a prosecutor, the key factor that affects public safety, is whether the “criminal” is “in or out” of custody. There is an inherent injustice when a person is incarcerated before proven guilty. But there is an inherent injustice if the public is in danger when pretrial delays and system overloads allow a criminal to continue to offend. From a prosecutor’s point of view, an arrest would not have been made and the case would not have been charged, if the defendant were not guilty.
From a defendant’s point of view, without bail, custody begins at arrest and often ends with a plea. The public defenders and courts are overburdened. This means that pretrial custody time can exceed the time that would be imposed for the core offense.
County jail is a highly restrictive environment. Many county prisoners see only an hour or two of daylight whereas state prisoners can have 8-10 hours on the yard. For prisoners who have committed serious felonies, a quick plea and a prison sentence is the jail equivalent of booking a vacation to Hawaii.
This makes pretrial incarceration a powerful tool to promote guilty pleas. In many cases, credit for time served becomes the resolution. Prosecutors extract a price for this. The plea may include acceptance of a strike which will greatly enhance a future conviction. A large state prison sentence can be put on hold with the prosecutor’s knowledge that a probation violation (which does not require a jury trial to prove), can lead to the imposition of the prison sentence.
The cost of pretrial confinement falls on the county which pays the costs for the county jail. Even if bail is posted, the 10% payment to the bond company often strips the defendant of the financial ability to hire private counsel. The county again pays by providing free representation through the public defender or appointed counsel.
If Humphrey is upheld, many of these issues will have to be addressed in a political context. In Contra Costa County, as well as in other counties, the plans being developed pursuant to the Community Corrections Partnership as part of AB 109 realignment of sentencing laws is working to fill this gap. There is a pretrial services working group that began addressing these issues prior to the Humphrey decision. Whether this group alone or in concert with the County Supervisors or Legislature will be left to address the issues is the next chapter in this unfolding saga.