Virani et al. on Bail after the Humphrey Case

Alicia Virani, Stephanie Campos-Bui, Rachel Wallace, Cassidy Bennett, and Akruti Chandrayya (University of California, Los Angeles (UCLA) - School of Law, University of California, Berkeley - School of Law, University of California, Berkeley - School of Law, Legal Aid Foundation of Los Angeles and University of California, Los Angeles (UCLA), School of Law, Students) have posted Coming Up Short: The Unrealized Promise of In re Humphrey on SSRN. Here is the abstract:

 

On March 25, 2021, the California Supreme Court ruled in In re Humphrey that setting bail at an amount that a person cannot afford to pay is unconstitutional. Heralded as a landmark and historic decision, attorneys, community members, and other stakeholders predicted that the Humphrey decision would lead to more people being released pretrial. The decision was also seen as a racial justice victory, given the vast racial disparities in who is booked into custody and held pretrial without being able to afford their release — primarily Black, brown, and indigenous people.

After a review of numerous qualitative and quantitative datasets, our research team has found that the promise of Humphrey, 18 months after it was decided, remains unmet.

What has emerged through a review of copious data, correspondence, policies, news articles, and a statewide survey of defense attorneys is the following:

1. There is no evidence that Humphrey has resulted in a net decrease of the pretrial jail population in
California
2. There is no evidence that Humphrey has resulted in a decrease in bail amounts across California
3. There is no evidence that Humphrey has resulted in a decrease in the average length of pretrial
detention in California.

Our recommendations to the Judicial Council and the California Legislature include:

Adopting and enforcing a statewide uniform zero dollar bail schedule
Codifying a presumption of release in all cases
Funding indigent defense in the earliest stages of a case (pre-arraignment)
Funding jurisdictions to establish pretrial services agencies outside of law enforcement departments