The accused has a constitutional right to bail. The Eight Amendment to the United States Constitution states, “Excessive bail shall not be required, nor excessive fines imposed, nor cruel and unusual punishment inflicted.” The California Constitution states:
“A person shall be released on bail by sufficient sureties, except for:
- Capital crimes when the facts are evident or the presumption great.
- Felony offenses involving acts of violence on another person, or felony sexual assault offenses on another person, when the facts are 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
- 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 that there is a substantial likelihood that the person would carry out the threat if released.
In a 1951 opinion, U.S. Supreme Court Justice Robert Jackson observed the bail system was designed not as a device for keeping a person in jail but to enable them to stay out of jail until a trial has found them guilty. The U.S. Supreme Court has noted that without a meaningful right to bail, “the presumption of innocence, secured only after centuries of struggle, would lose its meaning.”
Understanding the Purpose of Bail in California
The primary purpose of California’s bail system is to ensure that defendants appear in court while allowing their release before trial. Bail is intended as a safeguard for public safety and judicial efficiency, not as a tool to punish individuals or detain them solely due to their inability to pay. Unfortunately, the system often creates disparities based on wealth, disproportionately impacting low-income individuals.
When a person is in custody, they are not able to work, which often leads to loss of job, housing and property. Even if they are innocent of the charges against them, they will be facing a great deal of pressure to resolve their case and get out of custody. A prosecutor will often make an offer for “time served,” so the person in custody is shown a path to freedom; all they must do is accept responsibility for a crime they may not have committed. If they choose to not enter a plea to a charge they did not commit, they could remain in jail until trial, which could take 30 days or years.
Kalief Browder, 17, was arrested for stealing a backpack in New York in 2010. He was taken into custody and bail was set at $10,000. His family could not afford to post that bail, and though he was offered to be immediately released if he pled guilty to the charge, he refused. Kalief spent the next three years on Riker’s Island, where he claimed he was beaten by inmates and officers, spent hundreds of days in solitary confinement, and attempted suicide more than once.
In 2013, the charges against him were dismissed and he was released from custody because the alleged victim had left the country and refused to return to testify. The tragedy goes beyond a 17-year-old spending three years in custody for a crime he was unwilling to admit because he did not commit the crime. Sadly, three years in custody caused Kalief so much damage that he ended up committing suicide less than two years later.
Misuse and Misunderstanding of Bail
In practice, bail is frequently misunderstood and misapplied by law enforcement and the judiciary. The California Constitution outlines specific conditions for granting or denying bail, yet unaffordable bail amounts are often imposed. This leads to pretrial detention for individuals who cannot afford to pay, contradicting the fundamental right to liberty and fairness enshrined in state and federal law.
The purpose of bail is to ensure that a defendant appears in court by providing a financial guarantee, typically in the form of money (or a bond), that is forfeited if they fail to attend court dates.
Traditionally, if a person is arrested for a crime, law enforcement would determine the bail amount by consulting the county’s “Bail Schedule.” These “Bail Schedules” vary considerably between counties, and for those who have the financial means to post bail, can be ineffective in ensuring they return to court. Additionally, the arresting officer may decide to arrest the person for the most serious crime they believe there is evidence to support, including a felony, to increase the suggested bail.
If a person wishes to post bail on the case, they can deposit the bail amount with the court, but most will do so with the assistance of a bail agent. Generally, a bail agent will require the accused or their family to pay the bondsman up to 10% of the total bond amount, and the agent will file paperwork with the court guaranteeing they pay the total bail amount if the accused fails to appear in court. After posting bail, the accused is released from custody and will be required to appear in court as directed by the court. If the case is not filed the bond is exonerated, but the fee paid to the bonding company is not returned, nor are any payment plans excused.
Finally, if the accused cannot post bail they will remain in custody until the case is closed. This means that an unaffordable bail amount has the same effect as a remand order or no-bail hold.
In theory, the bail amount is set in proportion to the seriousness of the crime on the idea that the more serious the allegations, the greater the incentive to flee the jurisdiction and not appear in court. The reality is that few people have the ability to flee the jurisdiction and those who do can afford to lose the bail amount posted. Bail as low as $1,000 may be out of reach for some who may be locked in jail for even a minor offense.
During the height of the Covid pandemic, many counties eliminated bail for misdemeanors and many non-violent felonies to reduce the number of people incarcerated. Remarkably, there was no increase in the number of people who failed to appear on their required court date. Clearly the rationale for bail schedules was invalid and unjust.
The Landmark In re Humphrey Decision
In March 2021, the California Supreme Court’s In re Humphrey decision significantly reshaped the state’s pretrial release and bail system, addressing long-standing inequities in cash bail practices. The ruling declared that setting bail beyond a defendant’s financial means violates constitutional principles of due process and equal protection, marking a major step toward a more equitable justice system.
The decision prohibited unaffordable bail amounts, targeting systemic issues that disproportionately affected marginalized communities. Judges are now required to prioritize non-monetary alternatives, such as electronic monitoring and community supervision, ensuring public safety while reducing financial burdens. This shift away from cash bail aims to prevent the unjust detention of individuals based on their financial means.
By aligning bail decisions with constitutional principles, the Humphrey ruling emphasized fairness and equality for all defendants, regardless of financial status. The decision underscored the need for individualized assessments, promoting a balanced approach to pretrial detention that protects individual freedoms while maintaining public safety. Despite its transformative intent, challenges in implementation continue to highlight the need for broader systemic reform in California’s bail practices.
The California Supreme Court recognized that bail has two main purposes. First, is to ensure the accused appears in court as required, and the second is to protect society. The challenge the court recognized is that a bail amount is not the best way of achieving those objectives.
Key Provisions of the Humphrey Ruling
Unconstitutional Bail Amounts: Courts are directed to take into consideration the defendant’s financial means when setting bail. Bail set at $10,000 may mean nothing to a billionaire, but would be impossible to post if someone is unemployed and homeless. The ruling directs the courts to view these two individuals independent of one another and set bail in an amount that would be felt the same based on their income. So, in the example, the court may set bail for the billionaire at $10,000, but set bail on the homeless person at $100, if they felt that bail was necessary to be posted.
Non-Monetary Conditions: Judges must prioritize non-monetary conditions of release, such as monitoring or community supervision. There are a number of ways to protect society through advances in non-financial monitoring options. For example, if the concern raised by releasing the accused is that they will drink alcohol and drive, the court can put them on a continuous alcohol monitor that will alert law enforcement if he any alcohol is consumed.
Due Process and Equal Protection: Bail decisions must align with constitutional rights to ensure fairness for all defendants, regardless of financial status.
Post-Humphrey Changes in Bail Practices
Despite the transformative potential of the Humphrey ruling, its implementation has faced significant challenges that have limited its effectiveness. Many judges continue to set bail amounts that are unaffordable for defendants, often citing public safety concerns. This practice undermines the ruling’s intent to create a fairer and more equitable bail system.
The Humphrey ruling states that “pretrial detention is impermissible unless no less restrictive conditions of release can adequately vindicate the state’s compelling interest.” The court went on to clarify, “In our society, liberty is the norm, and detention prior to trial or without trial is the carefully limited exception.”
Unfortunately, some defendants have found that raising the Humphrey concerns in a bail hearing has resulted in the court determining that the accused is a danger and remanding them into custody without bail. The decision to set bail at no bail if the bail issue is raised was one of the suggestions made by Retired Judge Couzens when he drafted the “Couzens Memo” on how judges should interpret and respond to the Humphrey decision. He suggests in a note: “the best practice is to set ‘no bail’ order rather than intentionally setting bail beyond the defendant’s ability to pay.”
Prosecutors throughout the state regularly oppose reducing bail or releasing the accused with non-monetary conditions, even though “Justice” would dictate such release. Prosecutors have learned that a person in custody is more likely to plead to the case to get out of custody rather than remaining in custody to fight it.
As a defense attorney, I also know that the desire to get out of custody may result in a client entering a plea over the objections of their attorney (even when the evidence is insufficient for a jury to find them guilty or with the knowledge that the consequences of the plea may result in custody issues or other penalties in the future).
Further, I know it’s much easier to defend a client out of custody than one in custody. When they’re free, they’re much more available to meet with their attorney, review evidence and discuss trial strategies in the comfort of their lawyer’s office rather than the cramped meeting room at the jail.
Studies conducted by the UCLA and UC Berkeley Law Schools reveal that pretrial detention rates in California have not significantly decreased since the Humphrey decision. Bail amounts remain prohibitively high for many defendants, leaving those unable to pay trapped in custody. Furthermore, some judges circumvent the standards set by the ruling by delaying the application of its principles, often postponing bail hearings until after arraignment. This results in extended periods of pretrial detention, which can have devastating personal and professional consequences for defendants, including job loss, housing insecurity, and strained family relationships.
Empirical findings reinforce these concerns, showing no substantial reduction in pretrial jail populations or in the average bail amounts set by judges. The persistence of these practices highlights the need for more consistent application of Humphrey standards and systemic changes to ensure that the ruling achieves its intended impact of a fair and just bail system in California.
Following the Humphrey ruling, many counties in California have had their “Bail schedules” deemed unconstitutional. When viewing the bail schedule in a particular county, the courts have found the lack of the judicial review outlined in the Humphrey decision means that the bail schedule is unconstitutional. In May 2023, a Los Angeles Superior Court judge found the use of the bail schedule in Los Angeles violated the Due Process clause of the U.S. and California Constitutions. In September 2023, the Sacramento County Bail schedule was also found to be unconstitutional.
These concerns have prompted constitutional challenges, including lawsuits in San Francisco, which claim that bail schedules disproportionately harm economically disadvantaged defendants. Such practices, critics argue, violate equal protection rights by effectively creating a two-tiered justice system that punishes individuals based solely on their inability to pay.
Legislative Efforts: Senate Bill 10 and Proposition 25
Senate Bill 10 (SB 10) aimed to eliminate cash bail in California, replacing it with risk assessments to determine pretrial release. Critics of SB 10, including both bail bondsmen and reform advocates, argued that the bill could perpetuate racial and socioeconomic biases due to reliance on algorithms. Proposition 25, a 2020 referendum to uphold SB 10, was ultimately rejected by voters.
There were several benefits and concerns surrounding the concept of a risk assessment algorithm:
- Advantages: Algorithms provide data-driven evaluations of defendants’ likelihood of reoffending or appearing in court.
- Drawbacks: Biases in input data can lead to discriminatory outcomes, particularly for marginalized communities.
Proposed Solutions for Bail Reform
Advocates for bail reform in California stress the need for systemic changes to create a fairer pretrial system. A key proposal is adopting zero-dollar bail schedules for non-violent offenses, reducing pretrial detention rates by removing financial barriers for low-income defendants. Independent pretrial services agencies could conduct objective assessments and recommend appropriate conditions for release, ensuring decisions are based on individual circumstances.
Judicial training and transparency are also vital. Training programs would help judges consistently apply the In re Humphrey standards, prioritizing non-monetary alternatives to bail, while transparency would build trust and accountability. Additionally, funding legal representation for indigent defendants before arraignment would ensure fair advocacy against unaffordable bail, promoting due process and equal protection. These reforms aim to create a pretrial system that balances fairness with public safety. Proposed changes:
- Zero-Dollar Bail Schedules
- Independent Pretrial Services Agencies
- Judicial Training and Transparency
- Funding Legal Representation
The Path Forward for Bail Reform
The Humphrey decision marks a pivotal step toward achieving more equitable pretrial practices in California, yet considerable progress is still required to address the entrenched flaws in the bail system. Legislative action is essential to establish clear and standardized guidelines for bail practices across the state, ensuring uniformity and fairness. Equally important is judicial accountability, which calls for increased oversight and specialized training to ensure judges consistently comply with constitutional mandates and the principles outlined in the Humphrey ruling.
California’s bail system stands at a critical juncture. The Humphrey decision and recent legislative initiatives offer a foundation for progress, but deeply ingrained practices and systemic biases remain significant barriers to reform. By emphasizing fairness, transparency, and non-monetary alternatives, California can and should reshape its pretrial detention practices into a system that truly upholds constitutional rights and delivers justice for all.
