Courtesy of James R. Touchstone, Esq., Jones & Mayer

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.

As always, if you wish to discuss this matter in greater detail, please feel free to contact me at (714) 446–1400 or via email at

Information on is for general use and is not legal advice.  The mailing of this Client Alert Memorandum is not intended to create, and receipt of it does not constitute, an attorney-client-relationship.

[1] 19 Cal. App. 5th 1006 (1st Dist. 2018).

[2] The First District noted that a 2019 San Francisco study determined that 85 percent of the inmates of the county jail were awaiting trial and “[o]f these, 40-50% could be released if they could afford to pay their bail.” (The Financial Justice Project, Office of the Treasurer & Tax Collector of the City and County of San Francisco, Do the Math: Money Bail Doesn’t Add up for San Francisco (June 2017) p. 4.)