Does the Humphrey Bail Analysis Apply to All Cases?

In In re Kenneth Humphrey (2021) 11 Cal. 5th 135, the California Supreme Court held that conditioning pretrial release from custody solely on whether an arrestee can afford bail is unconstitutional.  This holding was considered by many to be long overdue because many criminal defendants can not afford to post any bail, especially when bail is set in the millions of dollars or even hundreds of thousands of dollars.

The Humphrey court, however, went further.  It also held that when nonmonetary conditions of release would suffice to protect public and victim safety (i.e., a GPS tracker, SCRAM device, drug or alcohol awareness classes, etc.) and to ensure a person’s future appearance at trial in court and a financial condition is necessary, the trial 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.”  Humphrey, at 143.

When no option often than refusing pretrial release can reasonably protect the State’s compelling interest in victim and community safety, the Humphrey court continued, “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.”  In other words, what the trial court may not do is make continued detention depend upon an arrestee’s financial condition.

Applying these idealistic standards to real cases has become a challenge.

The recent case of In re Kernell Brown, a sex case out of Judge Lynne M. Hobbs’ courtroom in the Clara Shortridge Foltz courthouse, also known as CCB, in downtown Los Angeles epitomizes this difficulty.

Mr. Brown was charged in a felony complaint on August 28, 2019, with one count of oral copulation or sexual penetration of a child ten years or younger (Penal Code § 288.7(b)) and two counts of committing a lewd act on a child under age fourteen (Penal Code § 288(a)).  As his offenses were allegedly committed against more than one victim, sentencing in his case would fall under the One Strike Law (Penal Code § 667.1(b), (c)) if convicted.  He faced life in prison.

Brown had a prior criminal history from 2013 that involved, among other things, bench warrants being issued that remained outstanding from 2005.  He also had a criminal history from other states.

At his initial arraignment, bail was set at $1.45 million.  An amended complaint was later filed and his bail was increased to $3.45 million.  After the preliminary hearing, Brown’s counsel moved to reduce bail and Judge Hobbs, who is a well-respected judge, reduced Brown’s bail to $2.45 million.

On May 13, 2021, several weeks after the Humphrey decision was issued, Brown, representing himself, moved for release on his own recognizance or, alternatively, to have his bail reduced to no more than $1,000.  In his motion, Brown conceded that the crimes he was accused of are serious and violent, but argued he was indigent and would accept non-financial conditions of release, including electronic monitoring, community housing, home detention, treatment and education programs, a pretrial case manager and a protective order.  Brown attached a declaration stating he was indigent, unemployed and had no future prospects for income.

Judge Hobbs denied the motion, holding bail at $2.45 million.  Judge Hobbs held that Humphrey was not applicable to cases where defendants were charged with serious, violent felonies and if it did apply, financial conditions would only be considered if unusual circumstances existed. 

We understand how one may interpret Humphrey in this manner, especially if one reads Humphrey in a thorough manner because in Humphrey, there certainly were unusual circumstances that factually distinguish Mr. Humphrey’s case from Mr. Brown’s pending case.

On July 12, 2021, however, Mr. Brown petitioned the Second Appellate District for a writ of mandate to overturn Judge Hobbs’ order denying his motion to reduce bail. 

The Second Appellate District began its analysis by stating that it would approach the writ of mandate as a petition for a writ of habeas corpus.  It then granted Brown’s petition, ruling that Humphrey does apply even for serious, violent felonies like those charged against Brown.  The Second Appellate District ruled that the trial court must evaluate if a detainee is a flight risk or a danger to society or victims, the seriousness of the charged offenses, the arrestee’s criminal history and bench warrant history (the arrestee’s likelihood of reappearance at future proceedings).  After evaluating these factors, the court must set bail at an amount that an arrestee could reasonably afford.  The appellate court then ordered a new hearing on his motion to reduce bail.

The citation for the Second Appellate District Court ruling discussed above is In re Kernell Brown (2nd App. Dist., 2021) 76 Cal. App. 5th 296, 291 Cal. Rptr. 3d 461.

For more information about In re Kenneth Humphrey and bail issues in general, please click on the following articles: