California's Bail System

In the recent California Supreme Court case of In re Humphrey (Mar. 25, 2021) 11 Cal.5th 135, a unanimous Court determined that California’s bail system, as currently set up, violates the California Constitution.  Specifically, the Court found a disparity in the system where a wealthy person might secure a bail release in a case threatening public safety, while a poor person might remain in custody even though he poses no risk at all.  The Court concluded that in order for the bail system to comply with the California Constitution, a criminal suspect’s pretrial detention must be prohibited as a means of combating an arrestee’s risk of flight unless the court first finds, based upon “clear and convincing evidence,” that no other condition or conditions of release can reasonably assure the arrestee's appearance in court. The common practice of conditioning freedom solely on whether an arrestee can afford bail is unconstitutional.  Other conditions of release, such as electronic monitoring, supervision by pretrial services, community housing or shelter, stay-away orders, and drug and alcohol testing and treatment, may often prove sufficient to protect the community. The Court further held that where a financial condition is nonetheless necessary, the court must take into consideration the arrestee’s ....