Notes from a Foreign Field: In Re Humphrey – A Case Against Cash Bail [Guest Post]

[This is a guest post by Kieran Correia.]


The Supreme Court of California (“the Court”), in a unanimous ruling, held that detaining defendants solely because they are unable to afford bail was “unconstitutional.” This judgement marks a rupture from the routine of requiring defendants — even indigent defendants — to post large, often outrageously high amounts of cash bail, a practice that results in the disproportionate incarceration of people of colour in America.  

Some background to this case is in order. Humphrey, an African American sixty-six-year-old man, allegedly committed theft against a seventy-nine-year-old Elmer J. who lived in a senior home. Humphrey reportedly barged into Elmer’s home and, after threatening him, robbed $7 and a bottle of cologne. At arraignment, the prosecution demanded bail be set at $600,000 — more than 4 crores in Indian rupees — an astronomical figure, especially in comparison to the amount Humphrey stole from Elmer. Humphrey’s request to be released on his own recognizance — essentially, without posting bail — was denied and the amount was set at $600,000. Humphrey challenged the decision, pointing to the racism inherent in California’s criminal justice system and his rehabilitation from drug addiction among several other ameliorating aspects. However, the court dismissed his release request yet again, whilst reducing the bail amount to $350,000 — an amount still unaffordable to Humphrey.

Humphrey then filed a habeas corpus petition in California’s Court of Appeal. The appeals court granted his petition after the Attorney General reversed his decision of contesting bail. The appeals court ordered a new bail hearing, and Humphrey was subsequently released on certain nonfinancial conditions. The case was not appealed, but, at the request of certain authorities, the California Supreme Court took up the matter to settle the constitutionality of money bail in California.

Cash/money bail is still the dominant condition courts world over impose on defendants if they want to secure pretrial release. The bail amount can be egregiously high, as it was in this case, especially so in California, something the Court notes as well. This has led to the commercialization of furnishing bail in the United States: bail insurance companies and bail bond agents take advantage of the system, lining their pockets in the bargain.

The United States Supreme Court — most notably in Bearden v. Georgia — has, in the past, indicated its unwillingness to allow an indigent defendant’s probation to be revoked because of their being unable to pay a fine. The Supreme Court opined that the state could only imprison the probationer if “alternatives to imprisonment [were] not adequate in a particular situation to meet the State’s interest in punishment and deterrence,” as long as he has made efforts to pay the fine. Though this ruling has rarely been upheld in practice, it nonetheless indicated the Supreme Court’s opinion vis-à-vis imprisoning probationers solely because of lack of money: that it was “fundamentally unfair.”

The Court draws on this broadly similar case to argue that it is not “constitutional to incarcerate a defendant solely because he lacks financial resources.” This is because, the Court argues, to do so would violate the defendant’s substantive due process rights to liberty as well as her equal protection rights — a similar argument made in Bearden. Substantive due process is an American constitutional law principle that argues that due process, a notion that finds a place in both the Fifth and Fourteenth Amendments to protect against arbitrary action on the part of the state on certain issues, also protects certain substantive rights — such as the right to liberty.

The Court acknowledges that bail is set to ensure the defendant appears in court proceedings and to protect the victim and the public. However, whilst setting bail, courts often ignore the accused’s financial situation; a high bail order can, therefore, in effect, become a “pretrial detention order.” As a corrective, the Court posits:

An arrestee may not be held in custody pending trial unless the court has made an individualized determination that (1) the arrestee has the financial ability to pay, but nonetheless failed to pay, the amount of bail the court finds reasonably necessary to protect compelling government interests; or (2) detention is necessary to protect victim or public safety, or ensure the defendant’s appearance, and there is clear and convincing evidence that no less restrictive alternative will reasonably vindicate those interests. Pretrial detention on victim and public safety grounds, subject to specific and reliable constitutional constraints, is a key element of our criminal justice system. Conditioning such detention on the arrestee’s financial resources, without ever assessing whether a defendant can meet those conditions or whether the state’s interests could be met by less restrictive alternatives, is not. (Emphasis supplied)

Thus, two things can be understood from this. First, the court does not entirely do away with the concept of cash bail, as some have reported: defendants who have the means — as determined by the court — to post bail but fail to do so will not benefit from this judgement. And second, the test of “clear and convincing evidence” by the state in order to deny bail has been reinforced: pretrial detention can only be an option where less restrictive alternatives cannot satisfy the state’s interests.

This is a welcome change from the status quo on cash bail. Cash bail in the United States has played an unenviable role in incarcerating around 700,000 people pending trial, ensuring the United States has the largest jail population in the entire world. Releasing defendants who were only detained because of their inability to post bail will also disproportionately benefit Black Americans who bear the brunt of the carceral state.

However, this ruling, welcome as it is, does not go all the way in reforming California’s money bail system. Illinois, for example, recently became the first state to completely abolish money bail from the criminal justice system, and the State of New Jersey and Washington, D.C., have already nearly abolished the money bail system. Keeping the cash bail system partially intact, as this judgement does, only allows the continuation of the funnelling of enormous amounts of money into bail insurance corporations. What is more, is that bail will continue to be set by a rigid schedule — the same schedule that recommended bail be set at $600,000 for the crimes committed by Humphrey; though many may have the means to pay those amounts of bail, they are still immense amounts of money that are taken away from a potentially innocent defendant.

Nonetheless, progress, wherever made, should be heralded. The lessons here for India’s criminal justice system cannot be ignored. Like the United States, marginalized sections in India are disproportionately incarcerated: Muslims, Dalits, and Adivasis, whose share of the population is 39%, comprise a little over 50% of the imprisoned population in India. Though India’s Supreme Court has held, on numerous occasions, that bail is the exception rather than the rule — encapsulated quite succinctly by Justice V.R. Krishna Iyer’s “[t]he basic rule may perhaps be tersely put as bail, not jail” — Indian courts have rarely lived up to this ideal.

Moreover, as in California, judges in India set bail at a high amount, leading to several thousand indigent defendants languishing in jail even as wealthier defendants who commit the same offence are let off. During the Covid-19 pandemic, for instance, hundreds of arrestees were in jail because they could not meet their surety conditions. These problems with bail had prompted Justice P.N. Bhagwati in Hussainara Khatoon to remark that it was “imperative that the bail system should be thoroughly reformed so that it should be possible for the poor, as easily as the rich to obtain pretrial release without jeopardizing the interest of justice.” The reason for eliminating high sureties as conditions for bail for indigent defendants in India is, thus, clear. Indeed, the California court’s judgement can serve as a useful roadmap. The right to liberty, for instance — a cornerstone of the California court’s judgement — is a core feature of the Indian constitution as well, enshrined in Article 21 of the Constitution of India, as is the right to equal protection before the law, codified in Article 14. Reading these articles together underscores the unconstitutionality of mandating cash bail even for poor defendants — a practice that, in effect, results in what Justice Cuéllar of the California court dubbed a “pretrial detention order,” when other conditions of release could have worked.  

The California Supreme Court’s judgement is certainly promising. The inclusion of cash bail in the justice system was always bound to incarcerate poor arrestees whilst acting as a get-out-of-jail-free card for the wealthy. This ruling shows us a way out of this.

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