Attorney General Becerra Urges State Supreme Court to Eliminate Unaffordable Bail

Wednesday, August 19, 2020
Contact: (916) 210-6000,

SACRAMENTO – California Attorney General Xavier Becerra today urged the California Supreme Court to eliminate unaffordable bail by making the California First District Court of Appeal’s ruling in In re Humphrey binding on trial courts while its review of the case is pending. In a letter to the court, the Attorney General reiterated that pretrial detention should depend on an individualized assessment of the need for a person to be detained, rather than on a defendant’s financial resources. Simply put, people should not be locked up before trial just because they are genuinely unable to afford bail.

“While justice must be impartial, it cannot be blind to the inequities of our society,” said Attorney General Becerra. “Bail decisions should be about danger to the public, not dollars in your pocket. Our criminal justice system has to work for everyone. That's why my office respectfully urges our state Supreme Court to eliminate unaffordable bail in California."

The case — In re Humphrey — is currently under review by the state Supreme Court and centers around an individual who had been detained in jail while awaiting trial because he was unable to afford the $350,000 bail set by the San Francisco Superior Court. In an earlier amicus brief, Attorney General Becerra argued that principles of due process and equal protection require consideration of a criminal defendant’s ability to pay in setting the amount of any monetary bail. Under the California Constitution, courts may still order detention without bail for those defendants who pose a serious threat to public safety or flight risk. However, courts may not require an unaffordable amount of money bail as a means of detaining defendants who pose no such threat.

Accordingly, the Court of Appeal ruled in Humphrey that these principles were violated when the trial court deemed the defendant eligible for release, but set bail at an amount that the defendant could not afford. However, the binding effect of the Court of Appeal's decision is currently on pause until the California Supreme Court itself rules. Although the state Supreme Court denied an earlier request by the defendant to make the Humphrey decision binding, the unexpected change in circumstances caused by the unprecedented coronavirus pandemic warrant reconsideration of the matter. Ultimately, as the appellate court noted, the important question in setting bail is not what is prescribed in any bail schedule, but the amount necessary to secure defendants’ appearance at their trial or court-ordered hearing. 

Attorney General Becerra is committed to improving public safety and the criminal justice system by advocating for reforms across the state and the nation, and working with local authorities to implement new policies. Earlier this month, he pushed back on an unlawful revision of Florida’s felon re-enfranchisement law, which restricted voting rights for people who are unable to pay court fines and fees. Last month, the Attorney General issued a report on the Sacramento Police Department’s policies and practices. In June, Attorney General Becerra called for a wide range of statewide police reforms aimed at proactive efforts to save lives. Last year, he secured an agreement with the Stockton Unified School District and its police department to address system-wide violations of the civil and constitutional rights of African American and Latino students, and students with disabilities. In 2018, as a result of the Trump Administration abandoning its role, the Attorney General stepped in at the request of the City of San Francisco and the San Francisco Police Department to provide independent oversight of the police department’s reform efforts.

A copy of today’s letter is available here. A copy of the appellate court’s decision is available here.

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