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Attorney General asks California Supreme Court to restore Humphrey bail-reform ruling

California’s attorney general is citing the COVID-19 pandemic in asking the state Supreme Court to reinstate the thrust of a landmark 2018 appellate ruling ordering state judges to spurn traditional cash bail schedules, to reduce the number of people jailed primarily because they can’t afford bail.

In a letter to the high court Wednesday, Attorney General Xavier Becerra urged justices to make the central tenet of the Humphrey decision binding throughout the state while they review the case. In the January 2018 decision, the First District Court of Appeal rejected the convention of relying on high fixed bail amounts in cases where a defendant does not pose a substantial safety risk, and mandated that state trial judges more heavily consider alternatives like electronic monitoring.

But the ruling’s legal impact was halted in May 2018 when the Supreme Court granted a review of the case. In the meantime, the state Legislature got involved, passing Senate Bill 10, which then-Gov. Jerry Brown signed that fall to officially eliminate the use of cash bail in California.

It would have taken effect this year, but a coalition of bail-bonds agencies swiftly moved to gather signatures and put the issue before voters on this November’s ballot. Even then, the bill’s support was fractured by late changes that left civil-rights groups withdrawing their backing, on the contention that the final version gave judges too much latitude and biased assessment tools in deciding a defendant’s risk, and gave prosecutors access to a vaguely defined exemption path.

Which brings the issue to the current moment, when county jails across the state have been working to decrease their populations to stem COVID-19 risks in custody facilities.

“The unexpected change in circumstances caused by the unprecedented coronavirus pandemic warrant reconsideration of the matter,” Becerra’s office wrote in a Wednesday news release.

A spokesperson for the state Supreme Court declined to comment on the AG letter, on account of it involving a pending case. Chief Justice Tani Cantil-Sakauye has supported eliminating cash bail, saying in past remarks that it “unnecessarily compromises victim and public safety,” and endorsing arguments that cash bail exacerbates socioeconomic and racial bias.

Opponents of the transformative policy change, particularly those in the bail bonds industry, say removing the current system takes away accountability for victims, and unfairly consolidates power among judges and prosecutors.

After the industry-backed repeal measure qualified for the ballot, Jeff Clayton, executive director of the American Bail Coalition, told this news organization, “The only debate we’re having right now is: Is the current system worse than the alternative? And the answer is, no, it’s not.”

Kenneth Humphrey was charged with stealing a bottle of cologne and $5 from an elderly neighbor at a San Francisco residential hotel in May 2017. Humphrey’s bail was initially set at $600,000, and later reduced to $350,000, but still well beyond his ability to pay or post bond.

On appeal, the First District court sided with Humphrey’s counsel — the San Francisco Public Defender’s Office and nonprofit Civil Rights Corps — and in its 2018 decision wrote that Humphrey was “entitled to a new bail hearing at which the court inquires into and determines his ability to pay, considers nonmonetary alternatives to money bail, and, if it determines petitioner is unable to afford the amount of bail the court finds necessary, follows the procedures and makes the findings necessary for a valid order of detention.”

San Francisco Public Defender Mano Raju said in a statement Wednesday that implementing the Humphrey decision is an “an essential safeguard.”

“Without this protection, poor people — many of whom are Black and Brown — will languish in custody instead of having the opportunity to live free, fight their case and participate in effective programming, if necessary, while awaiting their day in court,” Raju said. “Making this decision binding on all California courts is essential to ensuring fairness in the criminal justice system.”

Also Wednesday, Deputy Solicitor General Joshua A. Klein made a point in the AG letter to write that Becerra’s office was not looking to affect the court’s review, particularly on the question of when bail can be denied in a non-capital case.

But he argued that the Humphrey ruling’s driving premise — that unaffordable bail cannot be the sole reason someone is in jail — can and should be enforced now.

“We view that core constitutional principle to be clear and unassailable — pretrial detention should depend on an individualized assessment of the need for the person to be detained, rather than on the defendant’s financial resources,” Klein wrote.

This article was originally published by The Mercury News on August 19th, 2020.  The original article can be read here.

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