Publications and Reports

On March 25, 2021, the California Supreme Court ruled in Humphrey that setting bail at an amount that a person cannot afford to pay is unconstitutional. 

A year and a half after this historic decision and as outlined in our 2022 report, there was no evidence of a reduction of people in pretrial incarceration nor in median bail amounts. Knowing that a shift in culture in judicial decision-making can take time, this report evaluates implementation three years after the Humphrey decision.

While there was some progress in the immediate aftermath of Humphrey, many counties are reverting back to pre-Humphrey rates of pretrial incarceration. More broadly, we find that: 

• The overall lack of adherence to Humphrey continues to give rise to numerous challenges to the cash bail system through writs and affirmative litigation, indicating that wealth-based detention of Californians is still a regular occurrence across the state. 

• The impact of Humphrey on the pretrial jail population and cash bail across the state remains unclear, but has certainly not led to the drastic decrease in people held pretrial or bail amounts that were anticipated after the Humphrey decision.

• Defense attorneys report that judges continue to misinterpret Humphrey, leading to dire consequences including the ongoing, increased use of no bail holds. In turn, defense attorneys are increasingly hesitant to raise Humphrey arguments as they fear negative outcomes for their clients but are also exploring new techniques to adapt to the landscape.

While several bills have been introduced by the California Legislature on pretrial decisionmaking, little progress has been made toward recommendations outlined in our 2022 report.

On March 25, 2021, the California Supreme Court ruled in In re Humphrey that setting bail at an amount that a person cannot afford to pay is unconstitutional. Heralded as a landmark and historic decision, attorneys, community members, and other stakeholders predicted that the Humphrey decision would lead to more people being released pretrial. The decision was also seen as a racial justice victory, given the vast racial disparities in who is booked into custody and held pretrial without being able to afford their release — primarily Black, brown, and indigenous people.

After a review of numerous qualitative and quantitative datasets, our research team has found that the promise of Humphrey, 18 months after it was decided, remains unmet. What has emerged through a review of copious data, correspondence, policies, news articles, and a statewide survey of defense attorneys is the following:

• There is no evidence that Humphrey has resulted in a net decrease of the pretrial jail population in California

• There is no evidence that Humphrey has resulted in a decrease in bail amounts across California

• There is no evidence that Humphrey has resulted in a decrease in the average length of pretrial
  detention in California.

Our recommendations to the Judicial Council and the California Legislature include:

• Adopting and enforcing a statewide uniform zero dollar bail schedule

• Codifying a presumption of release in all cases

• Funding indigent defense in the earliest stages of a case (pre-arraignment)

• Funding jurisdictions to establish pretrial services agencies outside of law enforcement departments