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How One Case Could Dramatically Alter California's Bail System

Posted by Seth Chazin | Jan 29, 2018 | 0 Comments

Kenneth Humphrey, a 64-year old man, had been detained in San Francisco County Jail since May of 2017, not because of his flight risk, but because he couldn't afford to post bail. Humphrey was arrested for stealing $5 and a bottle of cologne, yet a judge handed him a $600,000 bail. Later, bail was reduced to $350,000. For such a small crime, the cost of Humphrey's freedom seems exorbitantly high. The Court of Appeal, surprisingly, agreed.

This past Thursday, January 25th, the First District Court of Appeal in San Francisco stated that, “a defendant may not be imprisoned solely due to poverty.” The court found that setting such an impossibly high bail violated Humphrey's right to due process, and decided that Humphrey is entitled to a new bail hearing, which must take into consideration his ability to pay.

At the close of the trial, San Francisco Public Defender Jeff Adachi declared his desire, “to start a movement in which defenders all over California demand that judges follow the law and hold new bail hearings pursuant to the Humphrey decision.”

As it stands, the system of money bail often disproportionately punishes low-income defendants while liberating affluent defendants. This also tends to exacerbate existential racial disparities in the criminal justice system. Seemingly, money bail violates the constitutional guarantee of equal protection under the law established in the 14th Amendment. California may soon be one of the first states in the country, following the example of New Jersey, to set bail based on flight risk rather than a defendant's ability to pay.

Deputy Public Defender and Civil Rights Corp Board Member Chesa Boudin noted that, “Mr. Humphrey [was] behind bars for 248 days simply because he  [was] too poor to purchase his freedom… The inhumanity and injustice of conditioning freedom on an unattainable financial condition is not unique to Mr. Humphrey; rather money bail is a deeply-embedded and discriminatory tool used to punish the poor and coerce waivers of rights every day across the state.”

The decision by the Court of Appeal, while significant for Humphrey, has even greater implications for the entirety of California's bail system. Attorney General Xavier Becerra said in response to the case, “The Department of Justice has determined it will not defend any application of the bail law that does not take into consideration a person's ability to pay, or alternative methods of ensuring a person's appearance at trial.” This decision dramatically alters the system of bail in California. No longer can arbitrarily high bail requirements be imposed on low-income defendants. Instead, judges have to do their due diligence and actually assess a defendant's ability to pay before setting bail.

The Court of Appeal has now definitively ruled in favor of Becerra's position, concluding that bail cannot be set above that which a defendant is able to pay. Humphrey and thousands of other California defendants wait in suspense as sweeping bail changes loom at the perimeter of the state's court system.

While Humphrey cannot reclaim the months of life he lost to the unjust system of money bail, the Attorney General's decision to tie the setting of bail to a defendant's ability to pay may prevent countless others from facing the same injustice. Freedom should never be contingent upon financial status. It is time for California legislators to take up the fight for genuine equal protection under the law.

About the Author

Seth Chazin

Seth P. Chazin has aggressively defended clients in thousands of felony and misdemeanor cases for over 30 years. He has extensive experience representing criminal defendants in federal and state court, while handling both state and federal appeals as well.


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“The death penalty is a lie, a misguided mistake born of anger and frustration. Capital punishment has become a perverse monument to inequality, to how some lives matter and others do not. It is a violent example of how we protect and value the rich and abandon and devalue the poor. The death penalty is a grim, disturbing shadow formed by the legacy of racial apartheid and bias against the poor that condemns the disfavored among us, but corrupts us all. It’s the perverse symbol elected officials use to strengthen their ‘tough on crime’ reputations and distract us from confronting the causes of violence. It is finally the enemy of grace, redemption and all of us who recognize that each person is more than their worse act.”
- Bryan Stevenson