- In re Humphrey ( (2021) 11 Cal.5th 135, the California Supreme Court held: “An arrestee may not be held in custody pending trial unless the court has made an individualized determination that … 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.” (Id. at p. 156.) Put another way, “detention is impermissible unless no less restrictive conditions of release can adequately vindicate the state's compelling interests.” (Id. at pp. 151–152.)
- In re Harris (2021) 71 Cal.App.5th 1085 applied Humphrey and further explained that the court must address less restrictive alternatives to pretrial detention and articulate its analytical process as to why such alternatives could not reasonably protect the government's interests. [Case remanded to trial court because no overwhelming evidence showed that less restrictive alternatives to detention could not reasonably protect the interests in public or victim safety]
When an individual is arrested for a crime in the State of California, typically that person will be taken to a local law enforcement station for booking, prior to incarceration in a station lock-up or county jail. Once arrested and booked, the defendant has several options for release pending the conclusion of his or her case.
The bail system is designed to guarantee the appearance of a criminal defendant in court at the time the judge directs.
The five basic release options available to an arrestee are cash bail, surety bond, property bond, release on his or her own recognizance (O.R.), and release on citation (“Cite Out”).
To be released on cash bail, an individual must post with the court the total amount of the bail, in cash, to secure his or her return to court on an appointed date, and thereafter until the case is concluded. Full cash bonds provide a powerful incentive for defendants to appear at trial. If the defendant shows up for his/her scheduled court appearances, the cash is returned to him/her. If s/he fails to appear, the cash bond is forfeited to the court.
An alternative to cash bail is the posting of a surety bond. This process m involves a contractual undertaking guaranteed by an admitted insurance company having adequate assets to satisfy the face value of the bond. The bail agent guarantees to the court that they will pay the bond forfeiture if a defendant fails to appear for their scheduled court appearances. The bail agent's guarantee is made through a surety company and/or by the pledge of property owned by the agent. For this service, the defendant is charged a premium. To be released pursuant to the posting of a surety bond, the arrestee or a relative or friend of the arrestee, typically contacts a bail agent, an individual licensed by the State of California to post surety bonds. Prior to the posting of a surety bond, the bail agent undertakes a detailed interview of the proposed guarantor of the surety bond, as well as of the arrestee and relatives of the arrestee, as part of the underwriting procedure for bond.
By involving the family and friends, as well as through the acceptance of collateral, the bail agent can be reasonably assured that an individual released on surety bond will appear at his or her appointed court date, as required, until the case is adjudicated. After this procedure is concluded, if an agreement is reached, the bail agent posts a bond for the amount of the bail, to guarantee the arrestee's return to court. With his money on the line, a bail agent has a financial interest in supervising bailees, and ensuring that they appear for trial. If a defendant “skips,” the bail agent has time and the financial incentive to find him/her and bring him/her in. Significantly, commercial bail bond agents profit only when the defendant shows up for trial. Judges acknowledge that bail agents have highly efficient methods to get defendants to court.
In rare cases and individual may obtain release from custody by means of posting a property bond with the court. Here the court records a lien on property, to secure the bail amount. If the arrestee subsequently fails to appear at the scheduled court date, the court may institute foreclosure proceedings against the property to obtain the forfeited bail amount.
Own Recognizance (O.R.)
Another method of release pending trial is through a county or law enforcement administered pre-trial release program. Usually, the staff members of these programs interview individuals in custody and make recommendations to the court regarding release of these individuals on their own recognizance (i.e., without any financial security to insure the interviewee's return). The interview process is often conducted over the telephone, with little inquiry into the individual's background to determine whether the detainee is likely to appear in court and with virtually no verification of information provided by the detainee. Since no money or bond is posted to secure the detainee's appearance in court, he or she faces no personal economic hardship from his or her conscious failure to appear. Citation Release This procedure, known as the “Cite Out”, involves the issuance of a citation by the arresting officer to the arrestee, informing the arrestee that he or she must appear at an appointed court date.
The Cite Out usually occurs immediately after an individual is arrested. As a consequence of the failure to follow complete booking procedures, the true identity and background of most individuals released on citation is never established. This results in the release of numerous arrestees who may have outstanding bench warrants pending or who may present a significant danger to society. Accordingly, in those cases involving Cite Outs, the arrestee may never be placed in custody, and like the own recognizance release, such an arrestee's appearance in court depends exclusively upon the integrity of the alleged felon and his or her voluntarily returning to court