By David M. Greenwald
San Jose, CA – A report last week from the Silicon Valley De-Bug, “Discord & Inaction: Bail and Detention Decisions One Year After Humphrey” evaluated the impact of the Humphrey decision (In re Kenneth Humphrey) on three Bay Area counties—Santa Clara County, San Mateo County and Alameda County—one year after the ruling, and found that most counties are in fact ignoring the Humphrey ruling in making bail and detention decisions.
Overall they found that judges in those three counties set cash bail in more than two-thirds of all cases (68.2%) and only allowed some form of release around one quarter of the time.
“Pretrial detention and the limiting the use of cash bail has been at the center of legal and legislative bail efforts reform in California,” De-Bug said in a release. “The Humphrey decision in March of 2021, was a landmark ruling that affirmed that people cannot be forced to pay money bail without the court making an individualized assessment about non-financial options of release, and their ability to pay if bail is imposed.”
“What we hold is that where a financial condition is nonetheless necessary, the court must consider the arrestee’s ability to pay the stated amount of bail — and may not effectively detain the arrestee ‘solely because’ the arrestee ‘lacked the resources’ to post bail” the court writes.
Critical to their ruling was the fact that the circumstances for no bail be unusual.
They acknowledge, “In unusual circumstances, the need to protect community safety may conflict with the arrestee’s fundamental right to pretrial liberty.” Under those conditions, “In order to detain an arrestee under those circumstances, a court must first find by clear and convincing evidence that no condition short of detention could suffice and then ensure the detention otherwise complies with statutory and constitutional requirements.”
But such detention does not depend on financial condition, rather on the “insufficiency of less restrictive conditions to vindicate compelling government interests.”
However, last spring, the Vanguard found that, for the most part, judges were unsure how to react to Humphrey.
The Silicon Valley De-Bug study, however, shows that the result has been largely business as usual.
“This report, from direct court observations, found the courts are not abiding by the ruling,” a release said.
There is some variation among the three counties.
For instance, “San Mateo is heavily reliant on cash bail for its pretrial population with 79.3% defendants forced to pay bail to fight their case on the outside. It’s worth noting that San Mateo County had in place a bail schedule which sets the minimum amount of cash bail at $250 for all misdemeanors and most felonies,” the report found.
Indeed, “As of March 2022, both San Mateo County and Alameda County have increased their base cash bail.”
The report found, “Alameda judges set similar rates of cash bail compared to releases, but possess a greater inclination to set No Bail. In San Mateo County, one judge expressed his concern about his powers for setting No Bail and instead set a $10 million bail.”
Finally, “Santa Clara County’s continued use of $0 Bail (which is set to extend until May 31, 2022) has a massive impact on the ability for poor/working class individuals to be released and fight the case from the outside.”
The report finds, “With over 63.7% of people being released without having to pay for their freedom, one can imagine the cascading effects this has on willingness to plead prematurely, strength of defense, ability to meet regularly with an attorney, inability to afford a paid attorney, health issues, long-term economic security, etc. when compared to similarly situated individuals in San Mateo County on $250 bail.”
Over all, “In only 1 case out of 233 was the individualized ability to pay considered by the judge when setting bail.”
They note according to Humphrey, “the judge must set bail within someone’s ability to pay for the vast majority of cases.”
However, “The report found similar discrepancies between Humphrey’s intended effect to encourage payable bail and the reality in the courts including the: lack of justification for detention, rare use of legal standards and almost no conversation on whether some cases were charge eligible to detain.”
Kaila Mathis, an organizer with Urban Peace Movement managed the collection of data in Alameda county found it, “extremely disheartening to see that the Humphrey decision is not being applied. Folks being able to afford bail to fight their case on the outside while they are still able to work and be with their family is extremely critical when we look at the outcomes of cases.
“The fact that the Humphrey decision can positively impact the lives of many and is not being fully utilized is horrible.”
Zach Kirk, an organizer from San Mateo County with Silicon Valley De-Bug that collected the data says, “After the Humphrey decision last year, we were excited that the Supreme Court recognized what community had known for a long time: that cash bail does not protect public safety, it just allows those with money release to the community, while working people are incarcerated.
“Unfortunately, this study and our day-to-day experience illustrate that rights under Humphrey have not trickled down to people arraigned each day in San Mateo County. Each judge has their own internal processes for determining detention & bail, none of which are significantly different from the process pre-Humphrey.”