How does a person get released from custody after they have been arrested in California?
After a defendant is arrested, there are several ways a person can be released. Law enforcement or the jail may decide to “cite and release” the defendant. This means the person is given a ticket or document that provides them with their court date and they have promised to appear at that date. This often happens for traffic matters or minor offense. A person may be “O.R’d” or released on their “own recognizance” by the Court. This is similar to the “promise to appear”, in that the defendant is allowed to be released from custody if they promise to make their court appearances. In some jurisdictions, the Court will release a person on “supervised O.R.”, which places specific requirements on the defendant as a condition of their release. Finally, the Court will set bail, and if the defendant can afford it, they can post either the full amount or use a bail bondsman, and then be released from custody.
The Right to Bail
Both the California and US Constitutions guarantee a criminal defendant the right to bail, except in very limited circumstances. (See US Const., XIV Amend., Cal. Const. Art. I, Sect. 12.) A person may not be denied admission to bail, except when there is “clear and convincing evidence” that there is “a substantial likelihood the defendant’s release would result in great bodily harm to others.” (Cal. Const., Art.I, sect. 12(b) & (c).) However, the law favors a reasonable bail. Typically a bail amount is set at the time of arrest but the defendant is entitled to review of that amount within five days.
A person detained in custody prior to conviction for want of bail is entitled, no later than five days from the time of the original order fixing bail, to an automatic review of the order fixing the amount of bail on the original accusatory pleading. (§ 1270.2.) (In re Humphrey (2018) 19 Cal.App.5th 1006, 1024)
The court is required to consider several factors when setting bail: seriousness of the offense charged, the previous criminal record of the defendant and likelihood of appearing at trial. However, the California Supreme Court held in 2018, and recently affirmed that holding, that the Court must also consider the defendant’s financial circumstances. The Court emphasized that failure to consider a defendant’s ability to pay bail. This is a monumental decision, in that the California Supreme Court has determined that failure to consider a person’s individual ability to pay bail allows a person to be imprisoned solely due to poverty, rather than a risk to public safety.
The court has found that a defendant’s financial circumstances should play a role in determining the amount of bail, particularly if being detained behind bars is not mandatory for the type of crime that was allegedly committed. For example, a drunk driving offense involving damages to another person or property has a set bail amount where pretrial detention is not required, if you are not able to pay that amount because of your financial circumstances then you would remain behind bars until your day in court. Not so any longer, the court must review an individual’s financial circumstances and set the bail based on what is reasonable for them to pay. “That a defendant may not be imprisoned solely due to poverty and that rigorous procedural safeguards are necessary to assure the accuracy of determinations that an arrestee is dangerous and that detention is required due to the absence of less restrictive alternatives sufficient to protect the public.” (People v. Humphrey, supra, 19 Cal. App. 5th at 1041.)
Although Humphrey is a Court of Appeal ruling, the requirement that Court’s consider a person’s financial ability has been deemed precedential. This means the Superior Court must deem this holding in Humphrey as precedent and they must follow it.