Understanding "No Bail" in Fresno County

Pretrial detention is a problem in Fresno County. But it doesn't have to be.

In 2021, the California Supreme Court ruled that criminal defendants cannot be detained pretrial solely because they are poor. The ruling was seen by some as revolutionary, but In re Humphrey merely extended the well-established principle that you can’t punish someone for being poor without first considering their ability to pay and other, less-punitive alternatives.

Implementing Humphrey’s simple directive has been difficult to say the least. Attorneys, trial judges, the appellate courts, and, most importantly, criminal defendants are confused. In fact, pretrial detention has increased since the Supreme Court’s ruling. What is going on?

Over the next couple weeks I will try and give a clear overview of California release law before offering some thoughts on why Humphrey and its progeny are causing so much mischief. Today, I want to address California’s detention scheme. When can someone be held “no bail” under California Law? We have to turn to Article I section 12 of the California Constitution.

Under Article I Section 12 of the California Constitution,

A person shall be released on bail by sufficient sureties, except for:

(a) capital crimes when the facts are evident or the presumption great;

(b) felony offenses involving acts of violence on another person, or felony sexual assault offenses on another person, when the facts are evident or the presumption great and the court finds based upon clear and convincing evidence that there is a substantial likelihood the person’s release would result in great bodily harm to others; or

(c) felony offenses when the facts are evident or the presumption great and the court finds based on clear and convincing evidence that the person has threatened another with great bodily harm and there there is a substantial likelihood that the person would carry out the threat if released.

Excessive bail may not be required. In fixing the amount of bail, the court shall take into consideration the seriousness of the offense charged, the previous criminal record of the defendant, and the probability of his or her appearing at the trial or hearing of the case.

A person may be released on his or her own recognizance in the court’s discretion.

The first thing that should jump out at you is that the language is archaic and hard to understand. That’s ok. Several appellate courts have legally “translated” this language so that we can understand how to apply its directives. Here is what Article I section 12 means.

First, we see that all persons charged with noncapital crimes are entitled to release unless they fall within a narrow class of exceptions. Those exceptions are contained in subdivisions (b) and (c). They require, as an initial matter, a felony offense involving “acts of violence on another,” “sexual assault,” or “threats of great bodily harm.” It is clear that the absence of a “felony offense”—the phrase is used no less than three times—means that you are entitled to bail. I will come back to this point later.

Second, if you do have a predicate felony offense, you simply continue to follow Article I Section 12’s text. We are told the facts supporting the felony offense “must be evident and the presumption great.” What the heck does this mean? The good news is that a few years ago the California Supreme Court told us: the phrase means “substantial evidence.” That is, there must be evidence that is reasonable, solid, and credible. But don’t worry about evidentiary standards right now; the point is that, so far, Article I section 12 has interposed two hurdles before the right to release can be defeated: a qualifying felony, and substantial evidence. Now how about a third?

Third, we read there must be a finding it would be “substantially likely” the person’s release from custody would result in “great bodily harm.” We read, too, this finding must be made by “clear and convincing evidence.” The confusing language theme continues! But, once again, the appellate courts (they interpret law) have thrown us a bone. “Substantial likelihood of great bodily harm” is a simple risk analysis. Really, if we are being honest, under this prong the court has to guess if someone will commit a new crime if released. This judicial risk analysis cannot be based on speculation; generalized harm to the community isn’t enough. And it must be supported by “clear and convincing” evidence, that is, evidence of a high probability that the defendant, if released, would inflict injury on someone.

There you have it. As you can see, detention is difficult. At least on paper, depriving someone of the right to release before trial is a tall order. The judge is required to make three involved findings of (1) a qualifying felony, (2) supported by substantial evidence, (3) that it is likely release would result in harm to someone else.

This post was was long on the law. But we can’t address problems with detention unless we can all agree on what the law is. Once we understand the detention scheme, we can start to look at specific applications in Fresno County. We can also look into the reasons why, in my view, many good judges in Fresno are failing to properly apply Article I Section 12’s framework. And, more interestingly, we can discuss whether Article I section 12’s directive that a person “shall be released” on “sufficient sureties” means affordable bail. Finally, a clear understanding of Article I Section 12’s detention scheme will allow us to understand key conceptual differences between explicit detention, effective detention, and dreaded “money bail.”

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