Court Ruling Challenges California’s Bail System

By Christopher Zoukis

A California state appellate court ordered a new bail hearing on Jan. 25 for a 64-year-old man who has been held for months in a San Francisco jail because he cannot raise the $350,000 bail needed for pre-trial release on charges for allegedly stealing $5 and a bottle of cologne.

His lawyers from the San Francisco public defender’s office and the Civil Rights Corps, a nonprofit group, aim to use the case to force change in the state’s bail system, which does not currently give low-income defendants facing large bail demands hearings before detaining them due to their inability to pay.

The petitioner in the case, ex-shipyard worker Kenneth Humphrey, was arrested May 23 last year on felony robbery and related charges, for allegedly following an elderly, disabled man living in the same building as Humphrey into his apartment, threatening him, and stealing a bottle of cologne and $5 in cash. Because of much earlier felony convictions – the most recent about 25 years ago – a new felony conviction could keep Humphrey incarcerated for the rest of his life.

In setting bail, the trial judge refused to ignore those long-ago convictions as urged by Humphrey’s counsel, and also noted Humphrey’s longtime drug addiction. He did, however, not set bail at $600,000, as the prosecutor asked and was permissible under the court’s standard bail schedule, but instead reduced it to $350,000, without asking about or making findings on Humphrey’s ability to pay, his likelihood of returning for trial, or the availability of workable alternatives to requiring money bail.

On Jan. 25, the appeal court, in a 48-page ruling (In re Humphrey), said the trial court had violated the Fourteenth Amendment by setting the high bail amount without considering the defendant’s circumstances, including his ability to pay, and ordered the trial court to grant a new bail hearing, this time taking into account the defendant’s circumstances, including ability to pay. “A defendant may not be imprisoned solely due to poverty,” it proclaimed.

The opinion even cited a “state of the state” address by Gov. Jerry Brown Jr. in 1979 calling for the California legislature to reform the state’s bail system, which he said imposed an unfair “tax on poor people” and left thousands to “languish in the jails of the state even though they have been convicted of no crime.” It also quoted the state Chief Justice’s challenge to the state legislature, in her 2016 “state of the judiciary” speech, to stop ignoring the issue of whether the current bail system effectively serves its purpose or instead acts to penalize the poor.

The appeal court decision, if it becomes precedent, could put an end to California courts setting prohibitively high bail amounts that detain low-income defendants without affording them hearings on whether they would be dangerous if released. Even before that’s resolved, it’s already clear opponents of the money bail system are gaining ground in California. The state Attorney General’s office now agrees Humphrey deserves a new bail hearing, and says it won’t defend bail determinations that fail to consider the ability to pay, or ways to guarantee appearance for trial. Some state legislators are also taking a renewed interest in the topic.

Christopher Zoukis is the author of Federal Prison Handbook: The Definitive Guide to Surviving the Federal Bureau of Prisons, College for Convicts: The Case for Higher Education in American Prisons (McFarland & Co., 2014) and Prison Education Guide (Prison Legal News Publishing, 2016). He can be found online at and