How Does a Humphrey Hearing Apply to Bail?

Posted by Ronald D. HeddingApr 27, 2022

I have a lot of clients asking me to file Humphrey's motion and argue to the judge because they've heard about it, especially clients who are in custody and are trying to figure out how to get out. 

I will give you the best explanation I can here, having argued these motions and read the case and giving you a nutshell indication of what's going on there. In March 2021, the California Supreme Court gave their opinion In re Kenneth Humphrey, which was a primary political issue over the use of cash bail.

How Does a Humphrey Hearing Apply to Bail?

The court did recognize the traditional use of cash bail represented California's main interest in detaining defendants who might be a flight risk or danger to society.

However, realistically, defendants usually are detained before their criminal trial not based on their potential flight risk or safety to the community but rather on their financial inability to afford posting bail. Simply put, they can't afford it.

Thus, the court decided defendants can't be incarcerated just because they don't have the financial means to post bail for release. In addition, there has to be strong evidence showing a defendant's detention is necessary to protect public safety. Every California county has a uniform bail schedule set regularly by a committee. The bail amount is set based on several factors, such as:

  • the type of offense charged,
  • defendant's criminal record, or
  • probationary status.

Most prosecutors will request that judges impose “schedule” bail for most defendants. Our Los Angeles criminal defense lawyers will discuss the court's ruling in greater detail below.

The Challenge to California's Bail System

Defendant Kenneth Humphrey was joined in his appeal by Xavier Bacerra, the Attorney General of California. They brought a challenge to the bail system, classified as an urgent matter.

The appeal stated that nobody should lose their freedom simply because they “can't afford to post bail.”  The Supreme Court sided with the appeal and made some critical decisions:

  • It's unconstitutional to subject a defendant's pretrial release “solely” to if they can afford to pay bail if other conditions of release like electronic monitoring are sufficient for the public's safety;
  • In criminal cases where a financial condition is relevant, the judge must consider the defendant's ability to pay when setting bail rather than just using the county bail schedule;
  • In cases where no amount of conditions could protect the public, the court can detain a defendant without bail, but only after a finding convincing evidence that no other conditions are sufficient.

Financial Ability to Post Bail

What's happened is that arguments have been made about the financial ability of defendants to be able to post bail.  The argument in favor related to this Humphrey's case is that what if two people are arrested simultaneously.

California’s Bail System

One person has a good job, and a bunch of money, and they can quickly bail out. At the same time, the other person has no money, so they can't bail out.  The premise is, is that it is not fair.  We shouldn't be allowing people to get out just because they have money to post bail. 

What we should be doing is evaluating that person and their economic status.  So, the judge is going to ask questions at Humphrey's bail motion, such as:

  • What does your client do for a living?
  • How much money do they make?
  • What are their financial resources?

Now, this Humphrey's case has ordered that courts look at the defendant's financial ability to determine what their bail should be set out. Maybe one person in our example should be set in a domestic violence case, for instance, at $50,000.00, while another person's bail should be set at $5,000.00.

This is because the person getting their bail set at $5,000.00 doesn't have the economic wherewithal to be able to post a $50,000.00 bail.  We have to make it even.  We have to make it fair.  That's what they're striving for.

The Dark Side of the Humphrey's Case

Of course, there's another issue to be aware of in Humphrey's case from a criminal defense standpoint. This case has a dark side. That means that sometimes the judge can determine that the person shouldn't be allowed to bail out.

Criminal Lawyer in Los Angeles

You could rarely do that before this case. Judges would have to set bail even in double homicide cases because people are entitled to bail in California, and for the most part, across the nation. 

But Humphrey says, look, there are also circumstances where somebody should get no bail.  If that person is a danger to the community, is likely to kill somebody, and continues to be involved in aggravating situations where they could hurt the public, then maybe that person does not deserve bail.

When people say, I want this Humphrey's case to apply to me, and in the meantime, they're charged with murder, kidnapping, or other serious crimes; they don't understand the premise behind it.

Humphrey's is usually not going to save that person because the catch-all will be, the judge says, I looked at everything, but I find an overriding concern for the public.  I don't want this person to get out if I let him out and hurt somebody in public. 

So, that's the catch-all that blocks a lot of people from getting out, and usually, if someone is charged with a severe crime and their bail is a million dollars or more, it's because they are a danger to the community and that's probably going to block Humphrey's case from helping that person.

Contact our Firm for an Honest Case Evaluation

The only way to find out is to sit down with a criminal defense attorney like me who's been doing this for nearly 30 years; worked for the district attorney's office; worked for a superior court judge, and then as a criminal defense attorney for someone like you who knows how to handle these cases. 

I'll tell you right now.  I'll give it to you straight.  I'm not going to lie to you – hire me, your bail is a million dollars, we might be able to get it down next to nothing, and we'll get you out. 

I'm going to tell you the truth, and that's important – that your criminal defense attorney is honest with you and gives you the correct and accurate information. If you or a loved one needs help, pick up the phone.  Ask for a meeting with Ron Hedding.  I stand at the ready to help you.

The Hedding Law Firm is located in Los Angeles County, and we offer a free case consultation by phone or by filling out the contact form.