Advocates cheer state AG's bail stance

  • by Seth Hemmelgarn
  • Wednesday February 28, 2018
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Bail reform advocates are cheering California Attorney General Xavier Becerra's decision not to appeal a court ruling that judges should consider defendants' ability to pay and alternatives to monetary bail.

The decision stems from a San Francisco case in which a man who's accused of injuring an elderly neighbor and stealing his cologne is being held on $350,000 bail.

San Francisco Public Defender Jeff Adachi said in a statement February 20, the day Becerra announced his decision, that the appellate court ruling is a "game changer."

Becerra's decision "confirmed without a doubt that the time for bail reform is now as Humphrey is now law," said Adachi, referring to defendant Kenneth Humphrey, for whom the case is named. "However, many judges are refusing to follow the Humphrey decision. All public defenders and private defense attorneys in California must demand judges follow the law and hold new bail hearings for those locked up simply because they are too poor to purchase their freedom."

The state's 1st District Court of Appeal's Division Two said in its decision filed January 25 that Humphrey is "entitled to a new bail hearing at which the court inquires into and determines his ability to pay, considers non-monetary alternatives to money bail, and, if it determines [he] is unable to afford the amount of bail the court finds necessary, follows the procedures and makes the findings necessary for a valid order of detention."

The San Francisco Public Defender's office, which is representing Humphrey in his criminal case, has been requesting bail hearings in all criminal cases since October 10. After the court's ruling, Adachi is encouraging public defenders and defense attorneys statewide to do the same.

Humphrey, 64, has been in jail since May 2017 on charges of first-degree residential burglary, first-degree robbery, inflicting injury on an elder, and theft of an elder. His bail has been reduced from $600,000 to $350,000, according to officials. His next court date is March 13.

Prosecutors say that during the incident, Humphrey lay in wait for his 79-year-old neighbor, who was disabled and using a walker, then followed him into his apartment. Once he got inside the victim's apartment, Humphrey allegedly demanded money, took the victim's cellphone and threw it, threatened to put a pillowcase over the victim's head, and stole $7 and a bottle of cologne that the public defender's office says was worth $5.

Attorneys have said that a judge in the case had violated Humphrey's 14th Amendment guarantees of due process and equal protection by setting bond beyond his means without accounting for his ability to pay or nonmonetary alternatives.

San Francisco District Attorney George Gasc´┐Żn is supportive of bail reform, but a spokesman said the decision should be made on a case-by-case basis.

"While the DA is very supportive of moving away from the antiquated money bail system generally, we believe pretrial release decisions should be made on a case-by-case basis, within the confines of the law, with consideration of a defendant's rights weighed against flight and public safety risks," spokesman Max Szabo wrote in an email to reporters.

The San Francisco Public Defender's office and the nonprofit Civil Rights Corps brought Humphrey's case to the appellate court.

Civil Rights Corps board member and Deputy Public Defender Chesa Boudin stated, "Mr. Humphrey has been behind bars for 248 days simply because he is too poor to purchase his freedom. ... The court and the district attorney repeatedly agreed that Mr. Humphrey was safe to be released from jail - as long as he were wealthy enough to pay hundreds of thousands of dollars ransom in a case where he is accused of stealing $5. 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."

According to the Northern California chapter of the American Civil Liberties Union, "over 60 percent of people in California jails are there awaiting trial or sentencing," indicating that they're there because they can't afford to bail out.

State Senator Bob Hertzberg (D-Van Nuys), who's been pushing for bail reform, also cheered Becerra's decision.

"Attorney General Becerra joins a chorus of leading voices calling for attention to this issue," that "together overwhelmingly make the case for bail reform, and for the passage of SB 10."

Senate Bill 10, which Hertzberg authored with Assemblyman Rob Bonta (D-Oakland), would require that pretrial services agencies conduct risk assessments and recommend conditions of release for defendants pretrial, among other provisions. People arrested for certain violent felonies wouldn't be eligible.

San Francisco Public Defender Jeff Adachi. Photo: Rick Gerharter