A Humphey motion is a motion to be released from pre-trial detention. The motion gets its name from the California Supreme Court case In re Humphrey (Mar. 25, 2021, No. S247278) ___Cal.5th___. At the outset of a criminal case or after circumstances have changed, it is important to aggressively litigate pre-trial detention orders.

On March 25, 2021, the California Supreme Court handed down In re Humphrey, a benchmark decision regarding pre-trial detention and bail:

“The common practice of conditioning freedom solely on whether an arrestee can afford bail is unconstitutional. Other conditions of release—such as electronic monitoring, regular check-ins with a pretrial case manager, community housing or shelter, and drug and alcohol treatment—can in many cases protect public and victim safety as well as assure the arrestee’s appearance at trial. What we hold is that where a financial condition is nonetheless necessary, the 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. (Bearden, supra, 461 U.S. at pp. 667, 668.)”

(In re Humphrey (Mar. 25, 2021, No. S247278) ___Cal.5th___ [2021 Cal. LEXIS 2195, at *6-7].)

“When making any bail determination, a superior court must undertake an individualized consideration of the relevant factors. These factors include the protection of the public as well as the victim, the seriousness of the charged offense, the arrestee’s previous criminal record and history of compliance with court orders, and the likelihood that the arrestee will appear at future court proceedings. (Cal. Const., art. I, §§ 12, 28, subds. (b)(3), (f)(3); Pen. Code, § 1275, subd. (a)(1).)”

(In re Humphrey (Mar. 25, 2021, No. S247278) ___Cal.5th___ [2021 Cal. LEXIS 2195, at *25].)

“In those cases where the arrestee poses little or no risk of flight or harm to others, the court may offer OR release with appropriate conditions. (See Pen. Code, § 1270.) Where the record reflects the risk of flight or a risk to public or victim safety, the court should consider whether nonfinancial conditions of release may reasonably protect the public and the victim or reasonably assure the arrestee’s presence at trial. If the court concludes that money bail is reasonably necessary, then the court must consider the individual arrestee’s ability to pay, along with the seriousness of the charged offense and the arrestee’s criminal record, and—unless there is a valid basis for detention—set bail at a level the arrestee can reasonably afford. And if a court concludes that public or victim safety, or the arrestee’s appearance in court, cannot be reasonably assured if the arrestee is released, it may detain the arrestee only if it first finds, by clear and convincing evidence, that no nonfinancial condition of release can reasonably protect those interests.”

(In re Humphrey (Mar. 25, 2021, No. S247278)(“Humphrey”) ___Cal.5th___ [2021 Cal. LEXIS 2195, at *28].)

“In choosing between pretrial release and detention, we recognize that absolute certainty—particularly at the pretrial stage, when the trial meant to adjudicate guilt or innocence is yet to occur—will prove all but impossible. A court making these determinations should focus instead on risks to public or victim safety or to the integrity of the judicial process that are reasonably likely to occur. (See Stack v. Boyle (1951) 342 U.S. 1, 8 [96 L.Ed. 3, 72 S. Ct. 1] (conc. opn. of Jackson,  J.) [‘Admission to bail always involves a risk that the accused will take flight. That is a calculated risk which the law takes as the price of our system of justice’]; cf. Salerno, supra, 481 U.S. at p. 751 [discussing an arrestee’s ‘identified and articulable threat to an individual or the community’].)

(In re Humphrey (Mar. 25, 2021, No. S247278) ___Cal.5th___ [2021 Cal. LEXIS 2195, at *29-30].)

“Our state Constitution does not explicitly state what standard of proof is required to justify pretrial detention when an arrestee poses a flight risk. On reflection, we agree with Humphrey that the standard of proof should likewise be clear and convincing evidence.”
(In re Humphrey (Mar. 25, 2021, No. S247278) ___Cal.5th___ [2021 Cal. LEXIS 2195, at *27].)

“The common practice of conditioning freedom solely on whether an arrestee can afford bail is unconstitutional. Other conditions of release—such as electronic monitoring, regular check-ins with a pretrial case manager, community housing or shelter, and drug and alcohol treatment—can in many cases protect public and victim safety as well as assure the arrestee’s appearance at trial. What we hold is that where a financial condition is nonetheless necessary, the 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. (Bearden, supra, 461 U.S. at pp. 667, 668.)”

(In re Humphrey (Mar. 25, 2021, No. S247278) ___Cal.5th___ [2021 Cal. LEXIS 2195, at *6-7].)

“And if a court concludes that public or victim safety, or the arrestee’s appearance in court, cannot be reasonably assured if the arrestee is released, it may detain the arrestee only if it first finds, by clear and convincing evidence, that no nonfinancial condition of release can reasonably protect those interests.”

(In re Humphrey (Mar. 25, 2021, No. S247278) ___Cal.5th___ [2021 Cal. LEXIS 2195, at *28] [bold added].)

“The court shall also consider any evidence offered by the detained person regarding his or her ties to the community and his or her ability to post bond.” (Pen. Code, § 1270.1, subd. (c).)

“While due process does not categorically prohibit the government from ordering pretrial detention, it remains true that ‘[i]n our society liberty is the norm, and detention prior to trial or without trial is the carefully limited exception.’ (Salerno, supra, 481 U.S. at p. 755.)” (In re Humphrey (Mar. 25, 2021, No. S247278) ___Cal.5th___ [2021 Cal. LEXIS 2195, at *30].)