Mon. Apr 15th, 2024



In March 2021, the California Supreme Court finally gave their opinion In re Kenneth Humphrey, which had become a huge political and legal issue over the use of cash bail.

The court recognized that the traditional use of cash bail represents the state’s primary interest in detaining a defendant who could be a flight risk, danger to the community, including the risk of safety to the victim.

Humphrey Hearing Related to a Bail

In reality, however, defendants are frequently detained before a trial not based on an individual’s risk to public safety or fear of fleeing, but on their financial inability to post bail.

In other words, they simply can’t afford to post the amount listed on the bail schedule.

The court determined that defendants can’t be incarcerated solely because they are unable to afford bail. Further, there must be clear and convincing evidence to show that detention is necessary to protect public safety.

Every county in the state of California has a uniform bail schedule which is set periodically by a committee. The amount of bail is based on several factors:

  • the type of crime charged,
  • defendant’s criminal history or probationary status, and
  • other factors.

Again, in reality, many prosecutors will request, and judges impose, “schedule” bail for most defendants.

The court’s ruling will be discussed in greater detail below by our Los Angeles criminal defense attorneys.


Kenneth Humphrey was joined in his appeal by the Attorney General of California, Xavier Bacerra, who brought a challenge to this system which he classified as an urgent matter.

In the appeal, he stated that nobody should lose the right to freedom simply because they “can’t afford to post bail.” The Supreme Court agreed with the argument and made some crucial decisions:

  • It is unconstitutional to condition a defendant’s pretrial release “solely” on whether they can afford to pay bail, as other conditions of release, like electronic monitoring, is sufficient to protect the public’s safety;
  • In cases where a financial condition is relevant, the court has to take into consideration the defendant’s ability to pay when they set the amount of bail rather than just simply applying the county’s bail schedule; and
  • In unique cases where no amount of conditions can properly protect public safety, the court can detain a defendant without bail, but only after a finding of clear and convincing evidence that no other conditions are sufficient.


In the Humphrey case, he was arrested on May 23, 2017, which was just another arrest as part of a life-long drug and alcohol addiction.

The trial court gave him a $600,000 cash bail on the charges of residential burglary, causing injury on an elderly victim, and misdemeanor theft.

At the court hearing, his public defender did request his own recognizance release which means he would be released pretrial without having to post cash bail. This O.R. release request was made due to his age and other factors.

The prosecutor alleged that Humphrey had four prior “strike” convictions under the definition of the California three-strikes law, and four prior serious felony robbery convictions.

After Humphrey’s defense lawyer moved for reconsideration of bail on several grounds, the trial court judge did reduce the bail to $350,000, but again denied the request for an own recognizance release.

Because the court failed to consider Humphrey’s financial inability to pay, he was entitled to a new bail hearing.


The California Supreme Court review of the case is noteworthy given its procedural history.

In the initial appeal, Humphrey did convince the Court of Appeals that the trial court’s failure to consider his financial inability to pay was a violation of his constitutional rights.

Supreme Court Review of the Humphrey Case

The Court of Appeals remanded the case to the trial court, which granted his pretrial release conditioned for:

  • participating in drug treatment
  • submitting to electronic monitoring, and
  • imposing a stay-away order protecting the victim.

Weeks after Humphrey’s court victory, several entities which included the San Francisco District Attorney’s office submitted a petition to the Supreme Court for review to address the constitutionality of cash bail.

They decided to accept the review even though Humphrey was no longer being detained or subjected to cash bail because the issue was “important,” and “capable of repetition.”

Put simply, the California Supreme Court believed it was as important to review and provide some guidance for future cases.


The Supreme Court’s holdings were based on several interesting sociological findings.  They highlighted some studies that found that pretrial detention increases:

  • the risk of a defendant losing their employment,
  • loss of housing, and
  • losing child custody.

Further, they found that mass pretrial detention imposes financial burdens on California taxpayers who are forced to pay to house and feed incarcerated defendants.

The court also noted findings that the entire net growth in the U.S. jail population in the last twenty years is partly responsible for increasing rates of pretrial, rather than post-trial, incarceration.

Also, the court made note of the disparities between California’s treatment of pretrial defendants compared to other states.

For example, defendants in large California urban counties are detained pretrial at much higher rates than those in comparable counties in other states.

They speculated the disparity could be due to the much higher cash amounts that are ordered by the courts.

For example, the median cash bail that is required to obtain a release in California is $50,000, while only $10,000 in the rest of the United States.


The Humphrey decision by the California Supreme Court is significant, beyond its holdings. The court based its analysis on principles of due process and equal protection.

Their primary focus was on the method by which cash bail is set and the failure by the courts to even inquire about a defendant’s financial ability to pay.

Their final analysis was a rejection of the position of numerous county District Attorneys who argued that only the Eighth Amendment’s ban on excessive bail could form the basis for Humphrey’s relief.

The court did, however, leave open a big question of whether the bail amounts at issue, $600,000 vs $350,000, would have violated the Eighth Amendment.

The Supreme Court cited at the end of their opinion that “liberty is the norm, and detention before trial or without trial is the carefully limited exception.”

At this point, however, it remains to be seen in the reality of very busy criminal arraignment courts in large California cities whether a careful individual review of financial ability to pay becomes available to all criminal defendants.

Either way, the Humphrey case provides the defense team with a powerful tool to support their indigent clients’ request for pretrial release where the old practice of defaulting to the county bail schedule would have typically resulted in pretrial detention.

More on Bail:

DuBose v. McGuffey – Supreme Court of Ohio Upholds Reasonable Bail Decision

What is a “Humphrey Hearing”?

In the California criminal justice system, a “Humphrey hearing” is a court hearing held soon after a person is arrested for a crime. A judge holds the hearing to ensure that you are not kept in custody following an arrest because you do not have the financial resources to post bail for release.

An arrestee can only be kept in custody without bail if there is clear and convincing evidence that detention is necessary to protect public safety.

Note that bail is money that you must pay to the court so that you can get released from jail. A bail system is used as a way to help ensure that you will show up for future court dates.

1. Is a Humphrey hearing a type of court appearance?

Yes. A judge holds a Humphrey hearing soon after you are arrested for a crime. During the hearing, the judge:

  • examines your financial ability to post bail, and
  • makes certain that you are not kept in jail simply because you do not have the financial means to pay bail.1

It is against the California constitution for you to be held on criminal charges solely because you cannot afford to pay bail.2

A judge can only keep you in custody in a criminal case without bail if the court finds strong evidence to show that custody is necessary to protect public safety.3

Note that a “Humphrey hearing” gets its name from Kenneth Humphrey, who was a real defendant in a California Court of Appeals case. Kenneth Humphrey was arrested in 2017 on charges of:

  • residential burglary,
  • causing injury on an elderly victim, and
  • misdemeanor theft.

The Court of Appeals ruled that the trial court’s failure to consider Mr. Humphrey’s financial situation and ability to pay bail was a violation of his constitutional rights.4

2. What happens at a Humphrey hearing?

During a Humphrey hearing, the judge will typically evaluate the defendant’s financial status and his or her ability to pay money bail. A judge may ask you such questions as:

  • What do you do for work?
  • What is your salary or how much money do you make?
  • Outside of work, do you have any other sources of money?
  • What is your family situation?

If a judge finds that your ability to pay bail is a real issue, the judge can set bail accordingly. For example, the judge may lower the amount of bail from the amount the judge would typically set in similar cases.

3. How much is bail?

Each California county has its own bail schedule that set forth bail amounts. The specific amount of bail will usually vary depending on the particular crime that a district attorney files.5

Issues involving bail amounts and pretrial detention/pretrial release are usually resolved during a defendant’s:

  • arraignment, or
  • bail hearing.

Defendants typically post bail by means of:

  • cash bail,
  • a bail bond, or
  • a property bond.

4. Is bail used in every criminal case?

No. There are many times when a judge awards a defendant with “own recognizance” release.

With an “own recognizance” release, a judge releases you from jail without you having to post bail. Own recognizance release is sometimes referred to as “O.R. release.”

Since you do not have to pay bail with O.R. release, a judge essentially releases you from custody based solely on your promise to attend all future court dates.

People usually get O.R. release if charged with a:

  • misdemeanor, or
  • non-serious felony.

Bail is often reserved for cases involving serious or violent felonies.

Two things usually take place if you do not show up for a court appearance on O.R. release. These include:

  1. a judge will issue a bench warrant for your arrest, and
  2. you will be charged with the offense of “failure to appear.”

The penalties for failure to appear will vary depending on whether the original crime you were charged with was a misdemeanor or felony.


Basically, in the 27 years that I’ve been practicing criminal defense, bail was pretty much controlled by a couple of things.

The judge would look at whether or not the defendant was a flight risk and whether or not the defendant was a danger to the community.

When looking at these things, there’s a bunch of different subcategories that would be assessed by the judge in setting the person’s bail or releasing them on their own recognizance, where they sign a promise to appear and don’t have to put up any money or use a bail bondsman.


In 2018, the First District Court of Appeal fought California money bail system in California. The court the system violates due process and equal protection of defendants.

Their arguments were primarily due to the fact that the current money bail system imprisons citizens because they can’t afford to pay bail.

Due to this ruling, the California Supreme Court had to review the system and consider a defendant’s ability to pay bail when setting a bail amount to be released from custody.

Prior to this ruling, a defendant’s ability to pay bail was not considered, but now the court has prohibited this type of detention.


The case was brought by Kenneth Humphrey, joined by then Attorney General Xavier Bacerra, is the argument that nobody should lose the right to freedom because they can’t afford to post bail.

What is a Humphrey's Hearing as It Relates to Bail?

Mr. Humphrey, 66, was arrested on May 23, 2017, as part of a long struggle with drug and alcohol addiction, was arrested again. This time, he was arrested and charged with first-degree residential robbery and burglary of an elderly victim.

He was accused of inflicting injury on an elder adult, and theft of an elder, a misdemeanor charge.

The elderly victim claimed Mr. Humphrey followed him into his apartment, located in San Francisco. Once inside, he allegedly demanded all his cash and told him he would be harmed if he didn’t comply.

The victim told him he had no money, making Humphrey angry who then threw the victim’s cell phone on the floor. The victim then gave him $2 in cash and some cologne before he finally exited the apartment.


Humphrey was arrested and then arraigned in court on May 31, 2017, where his public defender asked for a release on his own recognizance (OR), requesting no money bail would be set, due to his age and other factors.

Humphrey’s prior felony convictions were very old and he had no arrests for the last 14 years, but still the prosecutor requested a $600,000 bail, which was approved by the judge.  After a bail hearing, the amount was lowered to $350,000.

A petition for a writ of habeas corpus was filed in the First Appellate District of California, Division Two.

The argument was that setting a bail amount as a condition of release the defendant can’t pay is the same as a pretrial detention order and that detention was not necessary and violates the 14th Amendment’s guarantees of equal protection and due process.

The appeals court agreed and ruled the court didn’t consider whether Humphrey could realistically pay the required bail, there had to be a new hearing, which had to include his financial situation.

A new hearing was conducted and Mr. Humphrey was released, but was ordered to stay-away from the victim and to a substance abuse program.


Back to present day, there’s now a new factor at play which relates to the Humphrey case.

Basically what it has to do with, is that it’s not fair if one person, for example, is charged with domestic violence and that person has a lot of money and they can easily post the $50,000.00 bail.

Whereas, somebody else, who has the exact same charges and set of circumstances, who doesn’t have any money, can’t post the bail.

That’s where this Humphrey case comes in, and the judge must assess the person’s economic wealth in setting their bail.

The judge will ask what the person makes per month, what type of responsibilities they have financially.


Now, unfortunately, what a lot of people don’t realize as I’m seeing people complain that they’re not getting out related to a Humphrey’s hearing is that they’re also going to still look at the type of crime that the person is charged with.

For example, I had someone making a Humphrey’s argument who was charged with a very serious sex-related offense, where they were basically breaking into women’s houses and sexually assaulting them.

In that circumstance, the judge is going to find that this whole Humphrey’s thing is outweighed by the person’s dangerousness to the community.  That’s usually what it is going to boil down to — danger to the community.  Yes, it’s still important:

  • whether or not that person is a flight risk,
  • whether they’ve got a home in the community, and
  • whether they have a job.

All of those things are very important.  But, I can tell you right now, as it relates to bail in Los Angeles County, they’re going to look at:

  • how dangerous that person is,
  • how dangerous to the alleged victim in the case,
  • how dangerous to other people in society.

So, if you can beat that argument, if you can mount the argument that the person is not dangerous in any way.

Then you’re just left with the issue of whether or not that person is going to come back to court, or they have any failures to appear on their record, and once again, you put yourself in a great position if you can get around this argument of dangerousness to the community.

In re Humphrey

California Supreme Court Holds Detention Solely Because of Inability to Pay Bail Unconstitutional

Across the nation, people are arrested and detained pretrial solely because they lack the money to pay bail.1 Although many state constitutions grant individuals a right to be released on bail except in the most serious cases, “courts use unaffordable bail conditions to detain people deemed too dangerous or flight prone to release.”2 Recently, in In re Humphrey,3 the Supreme Court of California held that detaining a person pretrial solely because they cannot afford bail violates due process and equal protection.4 Consequently, California courts must consider ability to pay when setting bail, and courts cannot set unaffordable bail that would result in pretrial detention unless there is clear and convincing evidence that no other condition would reasonably protect the government’s interests in public or victim safety or court appearance.5 Humphrey provided a significant substantive protection for indigent persons who might otherwise be jailed because of their poverty. However, the decision left unresolved core questions about the role of public safety in California’s bail scheme — a result that may limit the holding’s practical impact on reducing the hardships posed by bail and pretrial detention in the State of California.

On May 23, 2017, sixty-three-year-old Kenneth Humphrey followed seventy-nine-year-old Elmer J. into his apartment in the senior home in which they both lived, threatened him, threw his phone to the ground, demanded money, and stole $7 and a bottle of cologne.6 Humphrey was arrested for first-degree residential robbery and burglary against, injury of, and misdemeanor theft from an elder adult.7 At his arraignment, Humphrey requested release on his own recognizance,8 but at the prosecutor’s request,9 the trial court set a $600,000 money bail — without considering Humphrey’s inability to pay that sum.10 Humphrey filed a motion for a formal bail hearing to review the order.11 At the hearing, the prosecutor argued that robbery is “a serious and violent felony,” so the court would need to find “unusual circumstances” to deviate from the prescribed bail amount.12 The prosecutor maintained that the high money bail was appropriate because Humphrey’s substance abuse was “a great public safety risk” and the fact that Humphrey faced a lengthy sentence under California’s three-strikes law made him a “flight risk.”13 The trial court found there were “public safety and flight risk concerns” and denied release on Humphrey’s own recognizance or supervised release, but reduced bail to $350,000 on the condition that he participate in a substance abuse treatment program.14 Humphrey appealed, filing a habeas corpus petition that argued that conditioning release on an amount of money bail that one cannot pay is “the functional equivalent of a pretrial detention order.”15

The California Court of Appeal reversed and remanded the case for bail proceedings that would take into account Humphrey’s ability to pay.16 It noted that article I, section 12 of the California Constitution “establishes a person’s right to obtain release on bail from pretrial custody” except in certain cases of capital crimes, violent or sexual felonies, and serious threats of violence.17 Moreover, it held that:

[T]he due process and equal protection clauses of the Fourteenth Amendment require the court to make two additional inquiries and findings before ordering release conditioned on the posting of money bail — whether the defendant has the financial ability to pay the amount of bail ordered and, if not, whether less restrictive conditions of bail are adequate to serve the government’s interests . . . .18

Imposing unaffordable bail that resulted in Humphrey’s detention unjustifiably circumvented those inquiries and was thus unconstitutional.19 On remand, the trial court imposed nonfinancial conditions and released Humphrey.20 Neither party appealed, but the Supreme Court of California granted review on its own motion in order to address “the constitutionality of money bail” in California and “the proper role of public and victim safety in making bail determinations.”21

The California Supreme Court affirmed.22 Writing for the court, Justice Cuéllar held that “conditioning freedom solely on whether an arrestee can afford bail is unconstitutional.”23 In the bail context, an individual’s due process liberty interest in freedom from detention and equal protection right not to be detained solely because of indigency converge.24 This case presented a novel application of the Fourteenth Amendment, so the court reasoned by analogizing to two United States Supreme Court cases from other contexts: Bearden v. Georgia25 and United States v. Salerno.26 In Bearden, the Supreme Court held that Georgia had violated the Fourteenth Amendment when it revoked Danny Bearden’s probation based on his failure to pay restitution and court fines, because it did so without first finding either that Bearden had the ability to pay and was refusing to do so or that no alternative measures would meet the State’s penological interests.27 If Georgia’s interests could be met without imprisonment, it would violate substantive due process and equal protection to jail Bearden solely because his poverty left him unable to pay, despite his bona fide efforts.28

The Humphrey court explained that in the bail context, the state’s compelling interest is not to punish29 but rather “to ensure the defendant appears at court proceedings and to protect the victim, as well as the public, from further harm.”30 Nonetheless, Bearden’s reasoning similarly applied: “[I]f a court does not consider an arrestee’s ability to pay, it cannot know whether requiring money bail in a particular amount is likely to operate as the functional equivalent of a pretrial detention order.”31 And detention “solely because” of one’s inability to pay is an unconstitutional infringement on an individual’s due process and equal protection rights against wealth-based detention.32

To complement this hybrid due process and equal protection rationale,33 the court also invoked United States v. Salerno, in which the U.S. Supreme Court upheld the federal Bail Reform Act of 1984.34 In Salerno, the Court established that pretrial “liberty is the norm, and detention . . . the carefully limited exception.”35 The Bail Reform Act met this standard by authorizing detention in the name of public safety only “for a specific category of extremely serious offenses.”36 Thus, the Humphrey court emphasized, individuals retain a fundamental due process right to pretrial liberty that is not contingent on financial position37 and can be overridden only in narrowly tailored cases.38

Following these conclusions, the court provided a “sketch [of] the general framework” for imposing money bail in California.39 California courts may still impose money bail, but only if (a) the court has considered whether nonfinancial conditions may reasonably protect public and victim safety and assure court appearance, and (b) the court considers the individual’s ability to pay when setting the bail amount.40 Courts may set bail at a level that will result in the person’s detention only if there is clear and convincing evidence that no other conditions of release could reasonably protect the state’s interests in public and victim safety or court appearance.41 In Humphrey’s case, “the trial court . . . failed to consider Humphrey’s ability to afford $350,000 bail (and, if he could not, whether less restrictive alternatives could have protected public and victim safety or assured his appearance in court).”42 So, the court affirmed the appellate court’s decision to grant Humphrey a new bail hearing.43 All the other justices concurred with no separate opinions.44

In Humphrey, the California Supreme Court established an important protection for indigent persons in California by extending the reasoning of Bearden and Salerno to the pretrial money bail context. However, the briefing, oral argument, and lower appellate opinion also discussed two important questions about the appropriate relationship between money bail and public safety: first, whether money bail in California rationally provides any incentive not to commit a crime pretrial, and second, whether California’s state constitution provides a right to bail that limits courts’ ability to detain persons pretrial on public safety grounds. The Humphrey opinion skirted these issues and in doing so limited its full potential to reduce the hardships posed by bail and pretrial detention in California.45

Before addressing the limitations of the decision, it is important to note the huge strides the California Supreme Court made in preventing persons from being jailed pretrial simply because of their poverty.46 This protection is quite valuable in light of the well-documented, detrimental impact of pretrial detention,47 the race and class inequities of the bail system,48 and the pressures innocents face to plead guilty when they cannot afford bail.49 The state does have compelling interests in setting pretrial conditions “to ensure the defendant appears at court proceedings and to protect the victim, as well as the public, from further harm.”50 But in California’s pre-Humphrey system, many indigents languished in California’s jails even though they posed no safety or flight risk, whereas others who may have posed such risks were released because they could pay their money bond.51 Humphrey rejected that approach by holding that a court must first consider whether nonfinancial release conditions may reasonably satisfy the state’s interests.52 If they cannot, then the court must consider ability to pay, so that a court does not issue bail amounts that are functionally detention orders for less-resourced individuals but which permit release for those with the ability to pay.53

Humphrey takes away a court’s ability to set unaffordable bail as a way to functionally implement a detention order when it could not meet the requirements of an explicit detention order. Humphrey extends the same substantive and procedural standards required for pretrial detention under article I, section 12 of the California state const-itution — a showing of “clear and convincing evidence” of a threat of serious harm or flight risk54 and “clear and convincing evidence that no other conditions of release could reasonably protect those interests”55 — and the Fourteenth Amendment to orders of unaffordable bail that cause individuals to be detained pretrial. It is an “open secret” that courts in right-to-bail states often use unaffordable bail to evade the state’s constitutional restrictions on pretrial detention.56 Humphrey’s holding has the potential to bring an end to that practice and revitalize the right to release in a significant number of cases involving no threat of serious violence or in which nonfinancial conditions would suffice.

There are, however, two aspects left open by the Humphrey opinion that may limit the transformative potential of its holding. First, Humphrey’s sketch of California’s bail framework suggests that where no nonfinancial condition can protect the government’s interests, a court may conclude that money bail is “reasonably necessary” to assure public and victim safety or court appearance.57 It may then set affordable bail based on an individual’s ability to pay, charged offense, and criminal record.58 The typical rationale for money bail is that it incentivizes persons released pretrial to return to court to retrieve the money they posted as bail.59 But, as even the District Attorney acknowledged in Humphrey, money bail in California cannot possibly serve as an incentive for noncriminal behavior because, under California law, the person can retrieve their bail money even if they commit a new offense while released.60 Other jurisdictions have rejected that money bail can ever be a reasonable way to secure public safety,61 yet the California Supreme Court chose not to reckon with this in Humphrey. Instead, it left in place a legal fiction with real consequences for those who are forced to pay bail under its rationale.62 It will be up to petitioners to argue that within Humphrey’s framework, there is no rational basis for a court to conclude that money bail is reasonably necessary to assure public or victim safety.

Second, the court left open the possibility that the right to bail provided by article I, section 12 of California’s state constitution was abrogated by article I, section 28(f)(3).63 Section 28 introduces broader victim and public safety considerations into the bail determination.64 The State argued that the court should interpret section 28 to mean that defendants who otherwise have a right to bail under section 12 — because they neither are charged with capital crimes nor present clear and convincing evidence of a substantial likelihood of inflicting great bodily harm on release65 — can nevertheless be detained as long as a court finds they “present a risk to victim or public safety by a preponderance of the evidence.”66 This construction would both lower the evidentiary standard and expand section 12’s narrow exemptions to encompass any public or victim safety risk. Yet the Court of Appeal chose not to address this argument,67 and the Supreme Court skirted it as well.68 A future embrace of such a view of section 28 would abrogate the currently very limited standard for permissible pretrial detention. As such, it would significantly undercut the protection against pretrial detention provided by Humphrey by making it easier for courts to justify pretrial detention explicitly without needing to rely on unaffordable bail.


On August 26, 2020, the Supreme Court of California issued an order making a part of the California First District Court of Appeal’s 2018 case, In re Humphrey,[1] binding on trial courts pending final resolution of the case.  In Part III of that opinion, the First District emphasized that bail determinations must be based upon consideration of individualized criteria, including a person’s particular circumstances and ability to pay.


California Bail Statutes

The California Constitution contains two sections pertaining to bail: Sections 12 and 28 of article I.

Section 12 “was intended to abrogate the common law rule that bail was a matter of judicial discretion by conferring an absolute right to bail except in a narrow class of cases.” (In re Law (1973) 10 Cal.3d 21, 25, citing In re Underwood (1973) 9 Cal.3d 345 and Ex parte Voll (1871) 41 Cal. 29, 32.)  The section “establishes a person’s right to obtain release on bail from pretrial custody, identifies certain categories of crime in which such bail is unavailable, prohibits the imposition of excessive bail as to other crimes, sets forth the factors a court shall take into consideration in fixing the amount of the required bail, and recognizes that a person ‘may be released on his or her own recognizance in the court’s discretion.” (In re York (1995) 9 Cal.4th 1133, 1139-1140, fn. omitted).

Subsections (b) and (c) of section 12 provide that a court cannot deny admission to bail to a defendant charged with violent acts or who threatened another with great bodily harm, except on the basis of “clear and convincing evidence” that there is “a substantial likelihood the defendant’s release would result in great bodily harm to others.”  The factors the court must consider in setting the amount of bail are “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.”

Subdivision (f)(3) of Section 28, entitled “Public Safety Bail,” provides that “[i]n setting, reducing or denying bail, the judge or magistrate shall take into consideration the protection of the public, the safety of the victim, 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.  Public safety and the safety of the victim shall be the primary consideration.”

The statutes implementing the constitutional right to bail are in title 10, chapter 1 of the Penal Code. (Sections 1268–1276.5.)  Before any person arrested for any specified serious offense may be released on bail in an amount that is either more or less than the amount contained in the schedule of bail for that offense, or may be released on his or her own recognizance, a hearing must be held at which “the court shall consider evidence of past court appearances of the detained person, the maximum potential sentence that could be imposed, and the danger that may be posed to other persons if the detained person is released.” (Section 1270.1 (a), (c).)  In determining whether to release the detained person on his or her own recognizance, “the court shall consider the potential danger to other persons, including threats that have been made by the detained person and any past acts of violence.  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.” (Section 1270.1(c).)  Where bond is set in a different amount from that specified in the bail schedule, “the judge or magistrate shall state the reasons for that decision and shall address the issue of threats made against the victim or witness, if they were made, in the record.” (Section 1270.1(d).)

Section 1275, which describes the factors judicial officers are obliged to consider in making bail determinations, follows the exact language of Section 28(f)(3) in declaring that “[i]n setting, reducing, or denying bail, a judge or magistrate shall take into consideration the protection of the public, the seriousness of the offense charged, the previous criminal record of the defendant, and the probability of his or her appearing at trial or at a hearing of the case.  The public safety shall be the primary consideration.” (Section 1275(a)(1).)

The only requirement in the bail statutes that a court considering imposition of money bail take into account the defendant’s financial circumstances is that the court consider “any evidence offered by the detained person” regarding ability to post bond. (Section 1270.1(c).)  Nothing in the statutes requires the court to consider less restrictive conditions as alternatives to money bail.

In re Humphrey Court of Appeal Case

In re Humphrey involved 63-year old retiree and San Francisco resident, Kenneth Humphrey, who was arrested and charged with first degree robbery, first degree residential burglary, inflicting injury (but not great bodily injury) on an elder and dependent adult, and theft from an elder or dependent adult, charged as a misdemeanor.  Humphrey had followed a 79-year old man into the man’s apartment, threatened to put a pillowcase over the man’s head after demanding money, and took $7 cash and a bottle of cologne before leaving.  The trial court did not grant Humphrey’s request to be released on his own recognizance or any kind of supervised release, and instead, set bail at $600,000 based on the bail schedule.

Humphrey filed a motion for a formal bail hearing pursuant to Penal Code section 1270.2, asserting that the bail was unreasonable, beyond his means, and violated his federal Constitutional rights.  The motion cited extensive statistical studies and presented significant detail about Humphrey’s family and personal history, including his ties to the community and his “life-long” efforts to deal with his drug addiction stemming from his father’s murder when Humphrey was 16 years old.  Humphrey also represented that after he had been accepted into a residential program addressing substance abuse and homelessness, and asserted that this residential program would ensure supervision and community safety, whereas placement in jail would deny him the opportunity to deal effectively with his substance abuse problem.

At the hearing, the pretrial services agency submitted a one-page form risk assessment report to the trial court.  The report did not suggest that any agency representative ever met with Humphrey.  There was no individualized explanation of its risk assessment of Humphrey, no information regarding the possible use of an unsecured bond, or regarding any supervised release programs as less restrictive release options.  The record did not indicate that the trial court ever asked the pretrial services agency to provide any such information.  The trial court acknowledged Humphrey’s efforts to engage in drug treatment but maintained that a high bail was still warranted because of public safety and flight risk concerns.  The trial court did not note that, as indicated in the risk assessment report and emphasized by Humphrey’s counsel, Humphrey had never previously failed to appear at a court ordered hearing.  The trial court modified the bail to $350,000.  Humphrey was detained prior to trial due to his financial inability to post bail.

Humphrey filed a petition for writ of habeas corpus with the First District Court of Appeal, contending that he was denied due process of law and deprived of his personal liberty on the basis of poverty, under the due process and equal protection clauses of the Fourteenth Amendment to the United States Constitution and article 1, Section 7 of the California Constitution.  Specifically, Humphrey claimed that bail was set by the trial court without inquiry or findings concerning either his financial resources or the availability of a less restrictive non-monetary alternative condition or combination of conditions of release.

The Court of Appeal observed that the prosecutor had presented no evidence that nonmonetary conditions of release could not sufficiently protect the 79-year-old victim or public safety, and that the trial court found Humphrey suitable for release on bail.  However, the trial court still set bail in an amount it was impossible for Humphrey to pay.  The Court of Appeal determined this effectively constituted a sub rosa detention order lacking the due process protections constitutionally required to attend such an order.

The appellate court reversed and remanded, declaring that Humphrey was entitled to a new bail hearing at which the trial court must inquire into and determine his ability to pay, consider nonmonetary alternatives to money bail, and, if it determined Humphrey was unable to afford the amount of bail the trial court deemed necessary, follow the procedures and make the findings necessary for a valid order of detention.  The First District concluded, among other things, that equal protection and due process principles required that pretrial detention should depend on an individualized assessment of the need for the person to be detained, rather than on the defendant’s financial resources.

Events Following the Court of Appeal’s Decision

The California Supreme Court granted review on its own motion on May 23, 2018.  Under California Rules of Court, rule 8.1115(e)(1), the Court of Appeal’s published opinion therefore “has no binding or precedential effect, and may be cited for persuasive value only,” “unless otherwise ordered by the Supreme Court.”  In June 2018, Humphrey’s counsel filed a letter requesting that the Supreme Court order that the Court of Appeal opinion have a binding or precedential effect until the Supreme Court issues its own decision on the case. (See Rule 8.1115(e)(3).)  The Supreme Court denied the motion.

On August 4, 2020, Humphrey’s counsel filed a letter renewing the request to grant the Court of Appeal opinion a binding or precedential effect, based on changed circumstances.  On August 19, 2020, Attorney General Xavier Becerra sent a letter to the Supreme Court supporting the request, in part, asserting that “the unexpected change in circumstances caused by the unprecedented impacts of the novel coronavirus pandemic warrant reconsideration of that earlier decision.”  The letter noted that the First District maintained that where a criminal defendant is otherwise judged suitable for release pending trial, that defendant should not be detained through the setting of bail in an unnecessarily high amount that the defendant cannot pay.  The Attorney General said this core principle had “become especially important for bail decisions occurring during the pendency of [the Supreme] Court’s review.”  With the exception of Part IV, the Attorney General thus joined in Humphrey’s renewed request for the Supreme Court to order that the appellate decision have binding precedential effect.

The Supreme Court granted Humphrey’s renewed request to restore the precedential effect of the Court of Appeal case, but only as to Part III of the opinion, discussed below.

Part III of In re Humphrey

The First District Court of Appeal held that bail determinations must be based upon consideration of individualized criteria.  The Court explained that failure to consider a defendant’s ability to pay before setting money bail is “one aspect of the fundamental requirement that decisions that may result in pretrial detention must be based on factors related to the individual defendant’s circumstances.”  The Court stated 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.

The First District discussed the United States Supreme Court case, Stack v. Boyle (1951) 342 U.S. 1, in which several petitioners were charged with conspiring to violate the Smith Act, which made it a criminal offense to advocate the violent overthrow of the government or to organize or be a member of any group devoted to such advocacy.  After bail was fixed in the uniform amount of $50,000 for each petitioner, they moved to reduce the amount as excessive, submitting statements regarding their individual circumstances and financial resources, none of which was controverted by the government. Stack, at p. 3.

The only evidence presented by the government was a showing that four persons previously convicted under the Smith Act in a federal court in another state had forfeited bail.  Noting that the government did not deny bail had been fixed in a sum much higher than that usually imposed for offenses with like penalties, the United States Supreme Court questioned the government’s failure to make any factual showing justifying the unusually high amount of bail uniformly fixed for each of the four petitioners, observing, “Since the function of bail is limited, the fixing of bail for any individual defendant must be based upon the standards relevant to the purpose of assuring the presence of that defendant. . . .” (Stack, supra, 342 U.S. at p. 5, italics added.)  Justice Jackson observed in his concurring opinion, “[e]ach defendant stands before the bar of justice as an individual.  Even on a conspiracy charge[,] defendants do not lose their separateness or identity. . . . The question when application for bail is made relates to each one’s trustworthiness to appear for trial and what security will supply reasonable assurance of his appearance.” (Id. at p. 9, conc. opn. of Jackson, J.)

Here, the First District noted that the $600,000 bail initially ordered was prescribed by the county bail schedule, which was also the basis for the $350,000 reduced bail order.  The Court explained that bail schedules provide standardized money bail amounts based on the offense charged and prior offenses, regardless of other characteristics of an individual defendant that bear on the risk he or she currently presents.  The Court stated that these bail schedules, therefore, “represent the antithesis of the individualized inquiry required before a court can order pretrial detention.”  The Court observed that bail schedules have been criticized as undermining the judicial discretion necessary for individualized bail determinations, as based on inaccurate assumptions that defendants charged with more serious offenses are more likely to flee and reoffend, and as enabling the detention of poor defendants and release of wealthier ones who may pose greater risks.

The Court of Appeal explained that it did not criticize the trial court’s consultation of the bail schedule because such consultation was statutorily required here.  Under Penal Code section 1275(c), for serious or violent felonies, the trial court could not depart from the amount prescribed by the schedule without finding unusual circumstances.  The First District stated that the schedule provided a useful measure of the relative seriousness of listed offenses and was useful in providing a means for individuals arrested without a warrant to obtain immediate release without waiting to appear before a judge.  Moreover, the schedule helped provide a starting point for provisional determinations while allowing time for the assessment of a defendant’s financial resources and less restrictive alternative conditions by the pretrial services agency.

However, the Court concluded that “unquestioning reliance upon the bail schedule without consideration of a defendant’s ability to pay, as well as other individualized factors bearing upon his or her dangerousness and/or risk of flight, runs afoul of the requirements of due process for a decision that may result in pretrial detention.  Once the trial court determines public and victim safety do not require pretrial detention and a defendant should be admitted to bail, the important financial inquiry is not the amount prescribed by the bail schedule but the amount necessary to secure the defendant’s appearance at trial or a court-ordered hearing.”  Moreover, for poor individuals arrested for felonies, reliance on bail schedules constituted “a virtual presumption of incarceration.”[2]

Here, the Court of Appeal observed that the prosecution had not presented any evidence to establish that “no condition or combination of conditions of release would ensure the safety of the community or any person” (United States v. Salerno, 481 U.S. 739, 743-744), and that would thereby justify abridgement of Humphrey’s freedom while awaiting trial.  The First District noted that neither the prosecution nor the trial court disputed that any risk Humphrey posed to the victim and public safety could be sufficiently mitigated with the conditions of release the trial court imposed.  The Court also expressed that the conditions requiring Humphrey to participate in the supervised residential drug treatment program and to stay away from the victim, addressed the particular circumstances of Humphrey and his offense, but the bail amount was based solely on the bail schedule rather than any individualized inquiry into the amount necessary to satisfy the purposes of money bail in this case.  The Court noted that the record did not show that Humphrey was able to pay even the reduced bail amount of $350,000, and nothing in the record suggested that his claim of indigency was not bona fide.  The First District concluded that the trial court thus reached the “anomalous result of finding [Humphrey] suitable for release on bail but, in effect, ordering him detained….”

The First District Court of Appeal thus determined in Part III of its opinion that the trial court did not make its bail determination after considering individualized criteria as required.  With the California’s Supreme Court order making Part III of the opinion binding on trial courts pending final resolution, trial courts must therefore hereafter make such individualized inquiries, including regarding ability to pay, and not merely consult the bail schedule to set bail.


The Supreme Court’s decision to provide precedential effect to Section III of the Humphrey decision, pending its ultimate determination of the case, will likely result in additional persons receiving lower bail amounts that what would otherwise be determined pursuant to the individual county bail schedule.  In turn, this will likely result in fewer persons being held in pretrial custody.  This decision’s overall effects on public safety remain to be seen.  However, there are a number of anecdotal instances of those facing criminal charges reoffending while out on bail, or pretrial release, during these trying times.  The Supreme Court’s decision may also signal how it may ultimately rule on this issue when it makes a final overall ruling in the Humphrey case.


On January 25, 2018, the California appellate court published a groundbreaking decision — In Re: Kenneth Humphrey — that challenged California’s broken bail system as unlawful and discriminatory. The case, brought by Civil Rights Corps and the San Francisco Public Defender’s Office, was filed on behalf of Mr. Kenneth Humphrey — to date the most significant figure in the struggle for bail reform in California history. Mr. Humphrey, a retiree residing in San Francisco, was accused of following a neighbor into his residential hotel room and stealing $5 and a bottle of cologne. He was originally detained on a $600,000 bail amount. His attorneys filed a habeas appeal challenging not only his detention, but also the bail system itself that forced him and thousands of others across the state to be priced out of their liberty and stripped of their freedom. The 2018 January appellate ruling declared Mr. Humphrey’s detention as unconstitutional, and created a new pathway to ending pretrial detention and a parasitic bail bond industry that capitalized on the criminal court system’s targeting of communities of color.

One year later, we honor the courage of Mr. Humphrey, the vigilance of his legal team, and the movement of communities impacted by money bail and pretrial detention who are using the Humphrey decision to free their loved ones. The anniversary though comes at an extremely tenuous time in California’s moment of changes in bail law. Rather than building off of the Humphrey decision to further the states’ need for pretrial freedom while eliminating money bail — in the end of 2018 legislators voted in an expansive pretrial detention system masquerading as bail reform called SB10 which gives unfettered power to judges, and relies on racist risk assessment tools, to incarcerate those accused of a crime.

And simultaneously, the San Francisco District Attorney’s Office, despite public messaging of supporting bail reform, challenged the Humphrey decision, and it is now headed to the California Supreme Court to be heard later this year. Given the threat of SB10, as well as a ballot initiative referendum brought by the bail industry that aims to bring back money bail, the Supreme Court’s upcoming decision on Humphrey may ultimately determine the fate of pretrial justice in California.

If the Supreme Court rules in favor of the spirit of Mr. Humphrey’s fight — to not only end unconstitutional use of money bail, but to restrict pretrial detention to only exceptional cases. But if the Supreme Court sides with the prosecutors and does not limit the framework of SB10, then judges can have wide discretion to detain, hundreds of thousands of people could be detained every year, and California’s movement for pretrial justice will suffer a significant blow

What we know from one year since the Humphrey ruling is that communities are ready and able to not only eliminate money bail, but pretrial detention as well — and will use any tool at our disposal to free our people. When De-Bug heard about the ruling at the beginning of 2018 we partnered with other participatory defense hubs and community groups across the state to hold a coordinated set of actions in front of county courts on February 21, 2018 so those most impacted by bail could know about the change in law. Under the banner “Day in California Court” community groups comprised of people directly impacted by the broken bail system held rallies in front of 9 different county courts from San Francisco to San Diego, handing out information about how to work with public defenders to secure release through the new bail hearings that the Humphrey ruling made possible. They then filled the courtrooms to do court watch, letting judges and prosecutors know that the community is present. The day was so powerful, groups went on to build sustained court watch and court intervention strategies to ensure court actors could be held to the Humphrey standard. We chronicle this collective initiative on a site called — a running public diary of California’s court system.

Through this work it also became apparent that a legal win does not automatically translate to freedom. If the Humphrey ruling was a new lever for freedom, its value was only realized when pulled by the community and pro-active public defenders. For the entrenched culture of the courts to change, communities need to be in the court exerting power and pressure.

We celebrate Mr. Humphrey, his freedom, the movement that was fueled through his fight, and call on the Supreme Court to be responsive to the call for justice by the people of California.

Please check out this photo essay chronicling Mr. Humphrey as he goes to court for a hearing just days before the anniversary of the ruling. He starts his day at home, with this partner, and challenging the allegations of his case from the position of power that freedom affords, without the coercive pressure of being locked up pretrial.

Attached are snapshot stories from organizers that are sitting with families and community members in Humphrey bail hearings that show both what is possible, and what is needed to achieve freedom in California.

Mr. Humphrey’s Day In Court:
By Charisse Domingo

This is a photo essay of Mr. Kenneth Humphrey on the day he went to court in late January 2019. Mr. Humphrey’s case, and his fight for freedom, challenged California’s broken bail system, and has resulted in people across California who were otherwise detained because they couldn’t afford bail, to be released pretrial through what is being called Humphrey Hearings. To date, he is the most significant figure in the struggle for bail reform in state’s history. His appellate case will be heard by the California Supreme Court later this year, and will significantly impact the fate of pretrial justice for the state and country.

Eight months after he was released from his own Humphrey hearing, Mr. Kenneth Humphrey sits in his home with his longtime partner Judy. They live a quiet life – walks on the lake, family gatherings.

Pausing in front of the hallway mirror before he heads to court, Mr. Humphrey is relieved to wear his own clothes as he attends court.

While Mr. Humphrey is grateful to be out on his own recognizance, the thought of facing a life sentence still wears heavy on his mind. Mr. Humphrey is accused of stealing $5 and a bottle of cologne from a neighbor. And because of his prior strikes from years ago, he is facing his 3rd strike.

Ms. Judy watches the news as Mr. Humphrey sits with his morning breakfast of tea, egg and toast. In about half an hour, he will be leaving home to go to court to hear about whether his case is set for trial or dismissed.

Morning peaks as Mr. Humphrey and Ms. Judy head out to court. To make the 9AM court appearance in San Francisco, they leave home by 7AM and sit in traffic.

Ms. Judy has made all of Mr. Humphrey’s court appearances to support him, and today is no different. This time, they head inside to court together, rather than she waiting from the pews and he walking out of the locked doors in an orange jumpsuit.

About a year ago, San Francisco Public Defender Jeff Adachi and community organizations with the Participatory Defense Network like Young Women’s Freedom Center stood outside the steps of this courthouse to celebrate the historic Humphrey ruling that changed money bail in California as we know it. Today, a year later, Mr. Humphrey stands outside those same steps, carving a space in history for those courageous enough to change it.


Legal References:

  1. In re Kenneth Humphrey, 11 Cal.5th 135 (Cal. 2021).
  2. In particular, keeping a defendant in custody solely because of a defendant’s ability (or inability) to post bail is inconsistent with the principles of due process and equal protection. See same.
  3. See same.
  4. Note that the California Supreme Court later reviewed the Humphrey case. The Supreme Court essentially upheld the Court of Appeals’ ruling and provided some additional guidance for future cases.
  5. See California Penal Code 1269b.
  6. sourced
  7. sourced
  8. sourced
  9. sourced
  10. sourced
  11. sourced