Introduction
Following arrest, bail plays a critical role in California’s criminal justice system. It is intended to strike a balance between protecting public safety, ensuring a defendant’s return to court, and respecting constitutional rights. For decades, California relied heavily on bail schedules—pre-set amounts tied to charges—without much consideration of a defendant’s ability to pay. That system came under sharp legal scrutiny in In re Humphrey (2021) 11 Cal.5th 135, a landmark California Supreme Court decision that reshaped bail law by emphasizing due process, equal protection, and the principle of using the least restrictive means necessary to achieve the state’s goals.
This article examines how bail works in California, the significance of the Humphrey ruling, and what “least restrictive means” means in practice for defendants and the courts.
What Is Bail?
Bail is the temporary release of a defendant from custody in exchange for a financial guarantee or other conditions that ensure their appearance at future court dates. Traditionally, California’s bail system was dominated by cash bail: either the defendant (or their family) posts the full amount or secures a bail bond from a surety company by paying a non-refundable fee, often 10%.
The problem with this system was obvious: wealthy defendants could easily buy their freedom, while indigent defendants—accused of the same crimes—remained behind bars awaiting trial, sometimes for months or years. This disparity set the stage for In re Humphrey.
Bail Schedules in California
Each California county publishes a bail schedule, a list assigning a dollar amount of bail to specific offenses. For example, a low-level misdemeanor might carry a few thousand dollars in bail, while serious felonies such as robbery or assault with a deadly weapon might run into tens or hundreds of thousands of dollars.
While bail schedules provide consistency and efficiency for law enforcement at the time of arrest, they historically did not account for individual circumstances such as:
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The defendant’s ability to pay.
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Whether non-monetary conditions could suffice.
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The actual risk of flight or danger to the public.
Courts technically had the authority to deviate from the schedule, but in practice, scheduled bail often became the default, leading to widespread detention of defendants solely because of poverty.
The Humphrey Case: A Turning Point
In In re Humphrey, the California Supreme Court addressed these inequities head-on. The case involved a San Francisco man, Kenneth Humphrey, accused of robbery and elder abuse. The trial court initially set his bail at $350,000, based on the county bail schedule. Humphrey could not afford that amount, so he remained incarcerated.
On appeal, Humphrey argued that setting bail without considering his ability to pay violated his constitutional rights. The California Supreme Court agreed, holding that:
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Ability to Pay Matters
Judges must consider whether the defendant can realistically afford the bail amount. Detention based solely on wealth is unconstitutional under principles of due process and equal protection. -
Least Restrictive Means
Courts must consider non-monetary alternatives and impose only the least restrictive conditions necessary to reasonably assure the defendant’s appearance and protect public safety. -
Detention Is Not Automatic
If the prosecution believes a defendant poses an unmanageable risk, the state must justify pretrial detention through a hearing. Simply setting unaffordable bail cannot serve as a proxy for denying release.
In short, Humphrey transformed bail hearings into a constitutional inquiry, not just a financial calculation.
What “Least Restrictive Means” Means in Practice
The phrase “least restrictive means” is critical in California bail law post-Humphrey. It reflects the principle that liberty is the default, and restrictions must be narrowly tailored.
Courts are now required to consider alternatives to high bail, such as:
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Release on Own Recognizance (OR): The defendant is released with a promise to appear at court.
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Supervised Release: Check-ins with probation officers or pretrial services.
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Electronic Monitoring: GPS ankle bracelets or home detention as alternatives to jail.
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Protective Orders: For cases involving alleged victims, courts may impose stay-away or no-contact orders.
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Drug or Alcohol Testing/Treatment: Conditions tailored to address underlying issues.
These tools allow judges to protect public safety and court attendance without relying solely on money bail.
Balancing Public Safety and Individual Rights
Critics of bail reform argue that lowering reliance on cash bail may endanger communities. However, the Humphrey court made clear that public safety remains a paramount concern. Judges may still order detention if there is clear and convincing evidence that no set of conditions—financial or otherwise—can mitigate the danger.
The difference is procedural fairness: courts cannot use high bail as a backdoor detention order for poor defendants, while wealthier defendants walk free under the same conditions.
How Bail Hearings Work After Humphrey
Today, a typical California bail hearing must address several key factors:
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Nature of the Offense – seriousness, violence, and potential penalties.
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Defendant’s History – prior convictions, failures to appear, ties to the community.
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Risk Assessment – flight risk and danger to specific individuals or the public.
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Ability to Pay – whether the defendant has the financial means to post bail.
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Alternatives – whether non-monetary or less restrictive conditions suffice.
Judges must state their reasons on the record, creating a transparent decision-making process subject to appellate review.
Bail Reform in California: What’s Next?
California has wrestled with bail reform for years. In 2018, Senate Bill 10 attempted to eliminate cash bail, but voters overturned it via Proposition 25 in 2020. As of now, cash bail remains in use, but Humphrey imposes constitutional guardrails that limit its inequitable application.
Many counties have expanded pretrial services programs that supervise defendants released without bail, reflecting a growing shift toward evidence-based, non-monetary conditions.
Why This Matters for Defendants
For anyone accused of a crime in California, the Humphrey decision offers powerful protections. Defendants should know that:
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Judges must consider their ability to pay before setting bail.
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Detention cannot be imposed simply because bail is unaffordable.
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Non-monetary alternatives must be considered.
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Defense attorneys can challenge excessive bail under Humphrey.
These protections ensure that pretrial liberty does not depend solely on wealth but instead on constitutionally valid considerations.
What to Remember
Bail in California has entered a new era. While bail schedules still exist, courts can no longer treat them as binding. Thanks to In re Humphrey, judges must evaluate a defendant’s individual circumstances, consider their ability to pay, and use the least restrictive means necessary to ensure public safety and court attendance.
The decision underscores a broader principle: freedom before trial should not depend on the size of a defendant’s bank account. Instead, California law now demands a more balanced, constitutional approach to bail—one that protects rights while preserving community safety.
