Author: Nicholas Cotter and David A. Kaiser

Opinion Analysis: In re Humphrey (S247278)

Opinion Analysis: In re Humphrey (S247278)

Overview On March 25, 2021, the California Supreme Court handed down its long-awaited decision in In re Humphrey (S247278). The case presented two key questions concerning bail: whether cash bail is unconstitutional, and how to resolve two apparently conflicting California constitutional provisions concerning bail. The decision answered the first question, and demurred on the second: The court held that pretrial detention based solely on a person’s inability to pay is unconstitutional. Because liberty is the norm in the criminal justice system, there is a fundamental right to bail, and bail may be denied only in narrow and unusual circumstances. Yet...