In re Humphrey

IN THE SUPREME COURT OF
CALIFORNIA

In re KENNETH HUMPHREY
on Habeas Corpus.

S247278

First Appellate District, Division Two
A152056

San Francisco City and County Superior Court
17007715

March 25, 2021

Justice Cuéllar authored the opinion of the Court, in which
Chief Justice Cantil-Sakauye and Justices Corrigan, Liu,
Kruger, Groban and Jenkins concurred.
 In re HUMPHREY
S247278

Opinion of the Court by Cuéllar, J.

An arrestee’s release pending trial is often conditioned on
whether the arrestee can make bail. To do so, an arrestee posts
security — in the form of cash, property, or (more often) a
commercial bail bond — which is forfeited if the arrestee later
fails to appear in court. Those who can’t afford to satisfy the bail
condition remain in jail until the end of the criminal
proceedings.
Underlying this arrangement is a major premise: that the
state has a compelling interest in assuring the arrestee’s
appearance at trial and protecting the safety of the victim as
well as the public. Yet those incarcerated pending trial — who
have not yet been convicted of a charged crime —
unquestionably suffer a “direct ‘grievous loss’ ” of freedom in
addition to other potential injuries. (Van Atta v. Scott (1980) 27
Cal.3d 424, 435 (Van Atta).) In principle, then, pretrial
detention should be reserved for those who otherwise cannot be
relied upon to make court appearances or who pose a risk to
public or victim safety. (Cf. Bearden v. Georgia (1983) 461 U.S.
660, 661–662 (Bearden) [limiting the circumstances in which an
indigent probationer may be incarcerated for failure to pay a
fine or restitution]; In re Antazo (1970) 3 Cal.3d 100, 113–116
(Antazo) [same].) But it’s a different story in practice: Whether
an accused person is detained pending trial often does not
depend on a careful, individualized determination of the need to
protect public safety, but merely — as one judge observes — on

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the accused’s ability to post the sum provided in a county’s
uniform bail schedule. (See Karnow, Setting Bail for Public
Safety (2008) 13 Berkeley J. Crim. L. 1, 16–17.)
Petitioner Kenneth Humphrey, joined by the Attorney
General, challenges this system with a claim as simple as it is
urgent: No person should lose the right to liberty simply
because that person can’t afford to post bail. His claim joins a
“clear and growing movement” that is reexamining the use of
money bail as a means of pretrial detention. (ODonnell v. Harris
County (S.D.Tex. 2017) 251 F.Supp.3d 1052, 1084.)
We find merit in Humphrey’s claim. The common practice
of conditioning freedom solely on whether an arrestee can afford
bail is unconstitutional. Other conditions of release — such as
electronic monitoring, regular check-ins with a pretrial case
manager, community housing or shelter, and drug and alcohol
treatment — can in many cases protect public and victim safety
as well as assure the arrestee’s appearance at trial. What we
hold is that where a financial condition is nonetheless
necessary, the court must consider the arrestee’s ability to pay
the stated amount of bail — and may not effectively detain the
arrestee “solely because” the arrestee “lacked the resources” to
post bail. (Bearden, supra, 461 U.S. at pp. 667, 668.)
In unusual circumstances, the need to protect community
safety may conflict with the arrestee’s fundamental right to
pretrial liberty — a right that also generally protects an arrestee
from being subject to a monetary condition of release the
arrestee can’t satisfy — to such an extent that no option other
than refusing pretrial release can reasonably vindicate the
state’s compelling interests. In order to detain an arrestee
under those circumstances, a court must first find by clear and

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convincing evidence that no condition short of detention could
suffice and then ensure the detention otherwise complies with
statutory and constitutional requirements. (See post, pp. 21–
23.)
Detention in these narrow circumstances doesn’t depend
on the arrestee’s financial condition. Rather, it depends on the
insufficiency of less restrictive conditions to vindicate
compelling government interests: the safety of the victim and
the public more generally or the integrity of the criminal
proceedings. Allowing the government to detain an arrestee
without such procedural protections would violate state and
federal principles of equal protection and due process that must
be honored in practice, not just in principle.
Because the trial court here failed to consider Humphrey’s
ability to afford $350,000 bail (and, if he could not, whether less
restrictive alternatives could have protected public and victim
safety or assured his appearance in court), we agree with the
Court of Appeal: Humphrey was entitled to a new bail hearing.
I.
What brought Humphrey, 66 years old, to this point was
his arrest on May 23, 2017, for first degree residential robbery
and burglary against an elderly victim, inflicting injury on an
elder adult, and misdemeanor theft from an elder adult. (Pen.
Code, §§ 211, 368, subds. (c) & (d), 459, 667.9, subd. (a).) The
criminal complaint also charged that Humphrey had suffered
four prior strike convictions (see id., §§ 667, subds. (b)–(i),

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1170.12, subds. (a)–(d)) and four prior serious felony convictions
(id., § 667, subd. (a)(1)), all for robbery or attempted robbery.1
The complaining witness, 79-year-old Elmer J., told police
that Humphrey had followed him into his Fillmore District
apartment in San Francisco, threatened to put a pillowcase over
his head, and demanded money. When Elmer said he had no
money, Humphrey took Elmer’s cell phone and threw it to the
floor. After Elmer handed over $2, Humphrey stole an
additional $5 as well as a bottle of cologne. Before leaving,
Humphrey moved the victim’s walker into the next room, out of
reach.
At arraignment on May 31, 2017, Humphrey sought
release on his own recognizance (OR) without any condition of
money bail. He cited his advanced age, his community ties as a
lifelong resident of San Francisco, and his unemployment and
financial condition. He also noted the minimal value of the
property he was alleged to have stolen, the remoteness of his
prior strike convictions (the most recent of which was in 1992),
the lack of any arrests over the preceding 14 years, and his
history of complying with court-ordered appearances.
Humphrey invited the court to impose an appropriate stay-away
order regarding the victim, who lived on a different floor of the
senior home in which they both resided. The prosecutor
requested bail in the amount of $600,000, as recommended by
the bail schedule, as well as a criminal protective order directing
Humphrey to stay away from the victim.

1
We rely largely on the Court of Appeal’s statement of facts.
(In re Humphrey (2018) 19 Cal.App.5th 1006, 1016–1022
(Humphrey); see Cal. Rules of Court, rule 8.500(c)(2).)

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The trial court denied Humphrey’s request for OR release
and, acceding to the People’s request, set bail at $600,000. After
acknowledging Humphrey’s ties to San Francisco and the age of
his prior convictions, the court buttressed its decision by citing
“the seriousness of the crime, the vulnerability of the victim, as
well as the recommendation from pretrial services.” The court
also ordered Humphrey to stay away from the alleged victim,
including the victim’s floor in the senior home.
Humphrey challenged this ruling. He did so by filing a
motion for a formal bail hearing (Pen. Code, § 1270.2) and an
accompanying request for OR release. As an exhibit to his
motion, Humphrey, who is African American, attached a 2013
study of San Francisco’s criminal justice system, which found
that “Black adults in San Francisco are 11 times as likely as
White adults to be booked into County Jail” prior to trial. (W.
Haywood Burns Inst., San Francisco Justice Reinvestment
Initiative: Racial and Ethnic Disparities Analysis for the
Reentry Council, Summary of Key Findings (2013) pp. 4–5.) The
motion also offered additional information about Humphrey’s
background, including the fact that he had successfully
completed the Roads to Recovery drug rehabilitation program
and earned a high school diploma while in custody at the San
Francisco County Jail from 2005 to 2008; that upon his release
he enrolled for nearly two years at City College of San Francisco
and served as a mentor for young adults in the community,
which ended when he suffered a relapse; and that he
successfully completed a residential substance abuse program
in May 2016. Finally, Humphrey announced that he had been
accepted into another residential substance abuse and mental
health treatment program, beginning the day after the date set
for the bail hearing.

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At the hearing, the prosecutor pointed out the trial court
would need to find unusual circumstances to justify a deviation
from the bail schedule because Humphrey was charged with
robbery, a serious and violent felony (see Pen. Code, § 1275,
subd. (c)), and asserted there were no such circumstances here.
He also argued that Humphrey’s substance abuse and inability
to address it constituted “a great public safety risk” and that
Humphrey was a flight risk because he faced a lengthy prison
sentence based on his prior strike convictions.
The trial court once again denied OR and supervised
release, but did find unusual circumstances warranting a
reduction of bail to $350,000. The court characterized the
current charges as “serious” and similar to those Humphrey had
committed in the past, “so that continuity is troubling to the
court.” Although “little was taken,” “that’s because the person
whose home was invaded was poor [and] I’m not [going to]
provide less protection to the poor than to the rich.” The court
elected to deviate from the bail schedule because of Humphrey’s
“willingness to participate in treatment, and I do commend that”
— but only to a limited extent, citing “public safety and flight
risk concerns.” The court included an additional condition of
bail: that Humphrey participate in the residential treatment
program he had identified.
The public defender cautioned that Humphrey was too
poor “to make even $350,000 bail” and would therefore be unable
to participate in the required residential treatment program.
The court did not comment on Humphrey’s inability to afford
bail. Nor did the court consider whether nonfinancial conditions
of release could meaningfully address public safety concerns or
flight risk.

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Humphrey filed a petition for writ of habeas corpus in the
Court of Appeal. Requiring money bail as a condition of release
at an amount the accused cannot pay, he claimed, is nothing less
than the functional equivalent of a pretrial detention order —
which can be justified only if the state establishes a compelling
interest in detaining the accused and demonstrates that
detention is necessary to further that purpose. (Humphrey,
supra, 19 Cal.App.5th at p. 1015.) He requested immediate OR
release or, in the alternative, a remand to the superior court for
a new hearing consistent with what the California Constitution
requires and with the substantive and procedural protections
discussed in United States v. Salerno (1987) 481 U.S. 739.
During such a hearing, the court could either (1) set the least
restrictive, nonmonetary conditions of release necessary to
protect public safety; or (2) if necessary to assure his appearance
at future court hearings, impose a financial condition of release
only upon making inquiry into and findings concerning
Humphrey’s ability to pay. (Humphrey, at pp. 1015–1016.)
After initially opposing the petition, the Attorney General filed
a return and agreed that Humphrey was entitled to a new bail
hearing. The Attorney General added that he would no longer
defend “ ‘any application of the bail law that does not take into
consideration a person’s ability to pay, or alternative methods of
ensuring a person’s appearance at trial.’ ” (Id. at p. 1016.)
The Court of Appeal granted habeas corpus relief,
reversed the bail determination, and directed the trial court to
conduct a new bail hearing. (Humphrey, supra, 19 Cal.App.5th
at p. 1016.) In its opinion, the court declared that principles of
due process and equal protection “dictate that a court may not
order pretrial detention unless it finds either that the defendant
has the financial ability but failed to pay the amount of bail the

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court finds reasonably necessary to ensure his or her
appearance at future court proceedings; or that the defendant is
unable to pay that amount and no less restrictive conditions of
release would be sufficient to reasonably assure such
appearance; or that no less restrictive nonfinancial conditions of
release would be sufficient to protect the victim and the
community.” (Id. at p. 1026; see also id. at pp. 1041, 1045.)
Because the trial court had not made any such findings, the
Court of Appeal remanded to allow “a new bail hearing at which
the court inquires into and determines his ability to pay,
considers nonmonetary alternatives to money bail, and, if it
determines petitioner is unable to afford the amount of bail the
court finds necessary, follows the procedures and makes the
findings necessary for a valid order of detention.” (Id. at p.
1014.)
No party petitioned for review. On remand, the superior
court conducted a new bail hearing and ordered Humphrey
released on various nonfinancial conditions, including electronic
monitoring, an order to stay away from the victim and his
residence, and participation in a residential substance abuse
treatment program for seniors. A few weeks later, upon request
by several entities (including the District Attorney of the City
and County of San Francisco, which had not been designated a
party in the Court of Appeal), we granted review on our own
motion to address the constitutionality of money bail as
currently used in California as well as the proper role of public
and victim safety in making bail determinations.2

2
Although Humphrey himself was no longer detained or
subject to money bail, we granted review to address “important

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II.
It is one thing to decide that a person should be charged
with a crime, but quite another to determine, under our
constitutional system, that the person merits detention pending
trial on that charge. Even when charged with a felony,
noncapital defendants are eligible for pretrial release — on their
own recognizance, on OR supervised release, or by posting
money bail. When people can obtain their release, they almost
always do so: The disadvantages to remaining incarcerated
pending resolution of criminal charges are immense and
profound.
If not released, courts have observed, the accused may be
impaired to some extent in preparing a defense. (See Van Atta,
supra, 27 Cal.3d at pp. 435–436; accord, Gerstein v. Pugh (1975)
420 U.S. 103, 123.) Empirical evidence reveals additional
disadvantages. Studies suggest that pretrial detention
heightens the risk of losing a job, a home, and custody of a child.
(See Barker v. Wingo (1972) 407 U.S. 514, 532–533; Van Atta, at
p. 436.) And while correlation doesn’t itself establish causation,
time in jail awaiting trial may be associated with a higher
likelihood of reoffending, beginning anew a vicious cycle. (See
Heaton et al., The Downstream Consequences of Misdemeanor
Pretrial Detention (2017) 69 Stan. L.Rev 711, 759–769; Pepin,
2012–2013 Policy Paper: Evidence-Based Pretrial Release
(2013) p. 5; Lowenkamp et al., The Hidden Costs of Pretrial
Detention (2013) p. 4.)

issues that are capable of repetition yet may evade review” and
“ ‘to provide guidance for future cases.’ ” (In re White (2020) 9
Cal.5th 455, 458, fn. 1.)

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Pretrial detention also forces the state to bear the cost of
housing and feeding those arrestees who could properly be
released. (See Van Atta, supra, 27 Cal.3d at pp. 436–437.) On
any given day, nearly half a million people — none of whom has
yet been convicted of a charged offense — sit in America’s jails
awaiting trial. (Crim. Justice Policy Program, Harvard Law
School, Bail Reform: A Guide for State and Local Policymakers
(Feb. 2019) p. 1 [“increases in pretrial detention rates are
‘responsible for all of the net jail growth in the last twenty
years’ ”].) This represents nearly 20 percent of the world’s
pretrial jail population. (Id. at p. 7.) Just six California counties
(Alameda, Fresno, Orange, Sacramento, San Bernardino, and
San Francisco), for example, spent $37.5 million over a two-year
period jailing people who were never charged or who had
charges dropped or dismissed. (See Human Rights Watch, “Not
in it for Justice”: How California’s Pretrial Detention and Bail
System Unfairly Punishes Poor People (Apr. 11, 2017) p. 3; see
generally Schnacke, Fundamentals of Bail: A Resource Guide
for Pretrial Practitioners and a Framework for American
Pretrial Reform (Sept. 2014) p. 15 [“the United States
Department of Justice estimates that keeping the pretrial
population behind bars costs American taxpayers roughly 9
billion dollars per year”].)
Although California courts deny bail outright to felony
defendants at roughly the same rate as courts in the rest of the
country (Tafoya, Pretrial Detention and Jail Capacity in
California (July 2015)),3 arrestees in large urban counties in

3
[as of Mar. 25, 2021]; all Internet

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California reportedly end up in pretrial detention at much
higher rates than arrestees in large urban counties elsewhere.
(Ibid.) Part of the disparity may arise from the fact that even
when bail is technically allowed, the amount that must be
posted is considerably higher in California, on average, than
elsewhere. And not in a way that can plausibly be justified by
the state’s higher cost of living: “The median bail amount in
California ($50,000) is more than five times the median amount
in the rest of the nation (less than $10,000).” (Ibid., italics
added.)
The indiscriminate imposition of money bail has
consequences. “[S]ome people currently in California jails who
are safe to be released are held in custody solely because they
lack the financial resources for a commercial bail bond, and
other people who may pose a threat to public safety have been
able to secure their release from jail simply because they could
afford to post a commercial bond.” (Pretrial Detention Reform
Workgroup, Pretrial Detention Reform: Recommendations to
the Chief Justice (Oct. 2017) p. 25.)
That disparity lies at the heart of this case.
III.
Twice, the superior court granted Humphrey bail — and
on both occasions, the trial court set bail at sums Humphrey
couldn’t afford. Initially set at $600,000, bail was then reduced,
after a formal bail hearing, to the still substantial sum of
$350,000. At no point did the court inquire into Humphrey’s
ability to pay such an amount. As it turned out, Humphrey

citations in this opinion are archived by year, docket number,
and case name at .

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could not post bail so he remained in custody, even though a
person facing similar charges, but with greater means, would’ve
been able to post bail and be released.
The United States Supreme Court “has long been sensitive
to the treatment of indigents in our criminal justice system.”
(Bearden, supra, 461 U.S. at p. 664.) So have we. (See Antazo,
supra, 3 Cal.3d at pp. 116–117.) Humphrey asks whether it is
constitutional to incarcerate a defendant solely because he lacks
financial resources. We conclude it is not.
Neither this court nor the United States Supreme Court
has yet held that a judge must consider what an arrestee can
pay when fixing the amount of money bail. But from cases
resolving analogous questions, we can perceive a theme.
Consider Bearden, supra, 461 U.S. 660, which examined the
permissibility of imprisoning a probationer for failing to satisfy
the balance due on a court-ordered fine and restitution. (Id. at
pp. 661–662.) Bearden argued that it violated the federal
Constitution to imprison him “solely because” he lacked the
ability to make these payments — a proposition that garnered
agreement from the Supreme Court. (Id. at p. 661.) Bearden’s
analysis proves illuminating in our assessment of whether it
likewise violates the state and federal Constitutions to hold an
arrestee in custody solely because the arrestee cannot afford
bail.
In Bearden, the court understood itself to be resolving
“whether a sentencing court can revoke a defendant’s probation
for failure to pay the imposed fine and restitution, absent
evidence and findings that the defendant was somehow
responsible for the failure or that alternative forms of
punishment were inadequate.” (Bearden, supra, 461 U.S. at p.

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665.) The parties had examined this question “primarily in
terms of equal protection,” which inquired “whether, and under
what circumstances, a defendant’s indigent status may be
considered in the decision whether to revoke probation.” (Id. at
pp. 665, 666.) Yet the court didn’t quite buy the parties’
argument that equal protection sufficiently captured the
problem Bearden identified. Because “indigency in this context
is a relative term rather than a classification, fitting ‘the
problem of this case into an equal protection framework is a task
too Procrustean to be rationally accomplished.’ ” (Id. at p. 666,
fn. 8.) The court found the “more appropriate question” (ibid.)
instead to be “whether and when it is fundamentally unfair or
arbitrary for the State to revoke probation when an indigent is
unable to pay the fine” (id. at p. 666).
Since the latter question turned out to be “substantially
similar” to the equal protection inquiry (Bearden, supra, 461
U.S. at p. 666), the court treated this case as one where “[d]ue
process and equal protection principles converge” (id. at p. 665).
This led the court to conclude that “[w]hether analyzed in terms
of equal protection or due process, the issue cannot be resolved
by resort to easy slogans or pigeonhole analysis, but rather
requires a careful inquiry into such factors as ‘the nature of the
individual interest affected, the extent to which it is affected,
the rationality of the connection between legislative means and
purpose, [and] the existence of alternative means for
effectuating the purpose’ ” in the case at hand. (Id. at pp. 666–
667, fn. omitted.)
At stake in Bearden was the probationer’s conditional
freedom after pleading guilty to burglary and theft. (Bearden,
supra, 461 U.S. at pp. 662, 672.) By granting Bearden
probation, Georgia had already determined that its “penological

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interests” did not require imprisonment (id. at p. 670) and that
a fine and restitution could be the appropriate penalty for his
crime. (Id. at p. 667.) To be sure: His failure to pay those debts
may have indicated “that this original determination need[ed]
reevaluation, and imprisonment may now be required to satisfy
the State’s interests.” (Id. at p. 670.) But that would be so only
under limited conditions: if the court determined (1) that he had
the means to pay and willfully refused to do so or (2) that
alternative measures would not be adequate “to meet the State’s
interests in punishment and deterrence.” (Id. at p. 672.) In
other words, “[o]nly if the sentencing court determines that
alternatives to imprisonment are not adequate in a particular
situation to meet the State’s interest in punishment and
deterrence may the State imprison a probationer who has made
sufficient bona fide efforts to pay.” (Ibid.)
The Supreme Court then remanded the matter to allow
the Georgia courts to determine either that Bearden had not
made sufficient bona fide efforts to pay his fine or that
alternative punishment could not satisfy the state’s interest in
punishment and deterrence. (Bearden, supra, 461 U.S. at p.
674.) In the absence of such findings, though, “fundamental
fairness” required that Bearden remain on probation. (Ibid.)
Principles of equal protection and substantive due process
likewise converge in the money bail context. The accused
retains a fundamental constitutional right to liberty. (See
United States v. Salerno, supra, 481 U.S. at p. 750 (Salerno);
Cal. Const., art. I, § 7.) Further, the state’s interest in the bail
context is not to punish — it is to ensure the defendant appears
at court proceedings and to protect the victim, as well as the

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public, from further harm. (See Cal. Const., art. I, §§ 12, 28,
subd. (f)(3); Pen. Code, § 1275, subd. (a)(1).)4

4
Appearing as amici curiae, the District Attorneys of San
Bernardino and San Diego Counties question whether the
concepts of substantive due process and equal protection even
have a role to play in setting or reviewing bail. According to this
view, Humphrey’s entitlement to relief, if any, can derive only
from the Eighth Amendment to the United States Constitution
and its specific prohibition on excessive bail. (Cf. Graham v.
Connor (1989) 490 U.S. 386, 394–395.) We disagree. Equal
protection and due process apply in a wide variety of contexts
where the government imposes benefits or burdens on people.
It’s true “that if a constitutional claim is covered by a specific
constitutional provision, such as the Fourth or Eighth
Amendment, the claim must be analyzed under the standard
appropriate to that specific provision, not under the rubric of
substantive due process.” (United States v. Lanier (1997) 520
U.S. 259, 272, fn. 7.) But the claim that bail is excessive under
the Eighth Amendment is not one Humphrey makes in this case
— and this opinion does not purport to address or resolve any
such claim. His objection instead targets the method by which
his bail was determined. What he claims is that because the
trial court failed to consider his ability to pay or the efficacy of
less restrictive conditions of release, he was detained without
adequate justification. Because that sort of claim is not
“ ‘covered by’ ” the Eighth Amendment (County of Sacramento v.
Lewis (1998) 523 U.S. 833, 843), neither Graham nor Lanier
precludes his hybrid argument based on the convergence of the
due process and equal protection clauses. (See Walker v. City of
Calhoun (11th Cir. 2018) 901 F.3d 1245, 1259; ODonnell v.
Harris County (5th Cir. 2018) 892 F.3d 147, 157; U.S. v.
Giangrosso (7th Cir. 1985) 763 F.2d 849, 851; see generally
Salerno, supra, 481 U.S. at p. 749 [recognizing an arrestee’s
general substantive due process right to liberty prior to a
judgment of guilt].) Those latter clauses protect the “specific
constitutional right[s] allegedly infringed” here. (Graham, at p.
394.)

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Yet if a court does not consider an arrestee’s ability to pay,
it cannot know whether requiring money bail in a particular
amount is likely to operate as the functional equivalent of a
pretrial detention order. Detaining an arrestee in such
circumstances accords insufficient respect to the arrestee’s
crucial state and federal equal protection rights against wealth-
based detention as well as the arrestee’s state and federal
substantive due process rights to pretrial liberty.
Other jurisdictions have similarly concluded that
detaining arrestees solely because of their indigency is
fundamentally unfair and irreconcilable with constitutional
imperatives. (See Walker v. City of Calhoun, supra, 901 F.3d
1245, 1258; ODonnell v. Harris County, supra, 892 F.3d at pp.
162–163; Hernandez v. Sessions (9th Cir. 2017) 872 F.3d 976,
992 [“By maintaining a process for establishing the amount of a
bond that likewise fails to consider the individual’s financial
ability to obtain a bond in the amount assessed or to consider
alternative conditions of release, the government risks
detention that accomplishes ‘little more than punishing a person
for his poverty’ ”]; Pugh v. Rainwater (5th Cir. 1978) 572 F.2d
1053, 1057 [“The incarceration of those who cannot [afford bail],
without meaningful consideration of other possible alternatives,
infringes on both due process and equal protection
requirements”]; Brangan v. Com. (Mass. 2017) 80 N.E.3d 949,
954; Valdez-Jimenez v. Eighth Judicial Dist. Court of Nevada
(Nev. 2020) 460 P.3d 976, 984 [“bail must not be in an amount
greater than necessary to serve the State’s interests”]; State v.
Huckins (Wn.App. 2018) 426 P.3d 797, 804 [“the court abused
its discretion by requiring monetary bail without considering
less restrictive conditions as required by the law”].)

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What we must therefore conclude is that pretrial
detention is subject to state and federal constitutional
constraints. Consistent with the aforementioned principles, we
hold that such detention is impermissible unless no less
restrictive conditions of release can adequately vindicate the
state’s compelling interests. (Cf. Bearden, supra, 461 U.S. at p.
672 [“Only if the sentencing court determines that alternatives
to imprisonment are not adequate in a particular situation to
meet the State’s interest in punishment and deterrence may the
State imprison a probationer who has made sufficient bona fide
efforts to pay”]; accord, Antazo, supra, 3 Cal.3d at p. 114
[“Because the state has available to it these alternative methods
of collecting fines, we cannot conclude that imprisonment of
indigents is necessary to promote this state interest”].)5

5
In re York (1995) 9 Cal.4th 1133 did not consider — and
thus did not reject — the hybrid due process/equal protection
challenge Humphrey has asserted here. York claimed a
violation of equal protection when the court required him to
submit to drug testing and warrantless searches as conditions
for his OR release. He complained that such conditions “could
not be imposed upon a defendant who is able to, and does, post
reasonable bail.” (York, at p. 1152.) We indulged, “without
deciding,” York’s predicate assumption that those on bail could
not be subjected to conditions other than those related to
assuring the arrestee’s appearance in court (ibid.) — but we
have since rejected this assumption as mistaken. (See In re
Webb (2019) 7 Cal.5th 270, 278 [“trial courts have authority to
impose reasonable conditions related to public safety on persons
released on bail”]; see generally Cal. Const., art. I, § 28, subd.
(b)(3).) York never considered whether or to what extent a court
must consider a defendant’s financial resources in setting bail.

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Opinion of the Court by Cuéllar, J.

IV.
In light of our conclusion that courts must consider an
arrestee’s ability to pay alongside the efficacy of less restrictive
alternatives when setting bail, it may prove useful for us to
sketch the general framework governing bail determinations.
When making any bail determination, a superior court
must undertake an individualized consideration of the relevant
factors. These factors include the protection of the public as well
as the victim, the seriousness of the charged offense, the
arrestee’s previous criminal record and history of compliance
with court orders, and the likelihood that the arrestee will
appear at future court proceedings. (Cal. Const., art. I, §§ 12,
28, subds. (b)(3), (f)(3); Pen. Code, § 1275, subd. (a)(1).)
The voters amended the Constitution to grant the people
of this state the right to have the safety of the victim and the
victim’s family considered in the bail determination process.
(Voter Information Guide, Gen. Elec. (Nov. 4, 2008) text of Prop.
9, p. 129.) To that end, they added “the safety of the victim” to
the list of factors that a court shall consider in “setting, reducing
or denying bail” ensuring that it, along with public safety, will
be “the primary considerations” in those determinations. (Cal.
Const., art. I, § 28, subd. (f)(3); see Pen. Code, § 1275, subd.
(a)(1).) Along with those primary considerations of victim and
public safety, the court must assume the truth of the criminal
charges. (See Ex parte Duncan (1879) 53 Cal. 410, 411; Ex parte
Ruef (1908) 7 Cal.App. 750, 752.) These are constitutionally
permissible considerations, within certain parameters. (See
Salerno, supra, 481 U.S. at pp. 750–751 [“When the Government
proves by clear and convincing evidence that an arrestee
presents an identified and articulable threat to an individual or

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Opinion of the Court by Cuéllar, J.

the community we believe that, consistent with the Due Process
Clause, a court may disable the arrestee from executing that
threat”]; U.S. v. Fidler (9th Cir. 2005) 419 F.3d 1026, 1028 [“the
detention is not based solely on the defendant’s inability to meet
the financial condition, but rather on the district court’s
determination that the amount of the bond is necessary to
reasonably assure the defendant’s attendance at trial or the
safety of the community”].)
In determining what kind of threat to victim or public
safety is required, we look to the standard of proof set forth in
article I, section 12 of the California Constitution. Because that
provision requires a court to find the specified risk of harm by
“clear and convincing evidence” before detaining an arrestee by
denying bail (Cal. Const., art. I, § 12, subds. (b), (c)), we similarly
interpret our Constitution to bar a court from causing an
arrestee to be detained pretrial based on concerns regarding the
safety of the public or the victim, unless the court has first found
clear and convincing evidence that no other conditions of release
could reasonably protect those interests.
Our state Constitution does not explicitly state what
standard of proof is required to justify pretrial detention when
an arrestee poses a flight risk. On reflection, we agree with
Humphrey that the standard of proof should likewise be clear
and convincing evidence. There is no compelling reason why the
quantum of evidence needed to establish that a given arrestee
poses a risk of flight should differ from the quantum of evidence
needed to establish that a given arrestee poses a risk to public
or victim safety. (See Kleinbart v. United States (D.C. 1992) 604
A.2d 861, 870 [“A defendant’s liberty interest is no less — and
thus requires no less protection — when the risk of his or her
flight, rather than danger, is the basis for justifying detention

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Opinion of the Court by Cuéllar, J.

without right to bail”]; cf. Pen. Code, § 1272.1, subds. (a), (b)
[applying the clear and convincing standard of proof to both the
risk of flight and the risk to public safety when analyzing bail
on appeal].) Accordingly, we conclude that our Constitution
prohibits pretrial detention to combat an arrestee’s risk of flight
unless the court first finds, based upon clear and convincing
evidence, that no condition or conditions of release can
reasonably assure the arrestee’s appearance in court. (See
Humphrey, supra, 19 Cal.App.5th at p. 1037.) 6
In those cases where the arrestee poses little or no risk of
flight or harm to others, the court may offer OR release with
appropriate conditions. (See Pen. Code, § 1270.) Where the
record reflects the risk of flight or a risk to public or victim
safety, the court should consider whether nonfinancial
conditions of release may reasonably protect the public and the
victim or reasonably assure the arrestee’s presence at trial. If
the court concludes that money bail is reasonably necessary,
then the court must consider the individual arrestee’s ability to
pay, along with the seriousness of the charged offense and the
arrestee’s criminal record, and — unless there is a valid basis
for detention — set bail at a level the arrestee can reasonably
afford. And if a court concludes that public or victim safety, or
the arrestee’s appearance in court, cannot be reasonably
assured if the arrestee is released, it may detain the arrestee
only if it first finds, by clear and convincing evidence, that no

6
We have not been asked to decide and do not determine
here whether the California Constitution permits pretrial
detention based on risk of nonappearance or flight alone,
divorced from public and victim safety concerns.

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 In re HUMPHREY
Opinion of the Court by Cuéllar, J.

nonfinancial condition of release can reasonably protect those
interests.
The experiences of those jurisdictions that have reduced
or eliminated financial conditions of release suggest that
releasing arrestees under appropriate nonfinancial conditions
— such as electronic monitoring, supervision by pretrial
services, community housing or shelter, stay-away orders, and
drug and alcohol testing and treatment (see, e.g., Pen. Code,
§ 646.93, subd. (c); N.J. Stat. Ann. § 2A:162-17) — may often
prove sufficient to protect the community. (See Pretrial
Detention Reform Workgroup, Pretrial Detention Reform:
Recommendations to the Chief Justice, supra, at pp. 51–53;
Crim. Justice Policy Program, Harvard Law School, Bail
Reform: A Guide for State and Local Policymakers, supra, at
pp. 26, 38, 44, 49, 59, 62–63.) Yet just as neither money bail (nor
any other condition of release) can guarantee that an arrestee
will show up in court, no condition of release can entirely
eliminate the risk that an arrestee may harm some member of
the public. (See In re Nordin (1983) 143 Cal.App.3d 538, 546
[“ ‘Prediction of the likelihood of certain conduct necessarily
involves a margin of error, but is an established component of
our pretrial release system’ ”].) In choosing between pretrial
release and detention, we recognize that absolute certainty
— particularly at the pretrial stage, when the trial meant to
adjudicate guilt or innocence is yet to occur — will prove all but
impossible. A court making these determinations should focus
instead on risks to public or victim safety or to the integrity of
the judicial process that are reasonably likely to occur. (See
Stack v. Boyle (1951) 342 U.S. 1, 8 (conc. opn. of Jackson, J.)
[“Admission to bail always involves a risk that the accused will
take flight. That is a calculated risk which the law takes as the

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 In re HUMPHREY
Opinion of the Court by Cuéllar, J.

price of our system of justice”]; cf. Salerno, supra, 481 U.S. at p.
751 [discussing an arrestee’s “identified and articulable threat
to an individual or the community”].)
Even when a bail determination complies with the above
prerequisites, the court must still consider whether the
deprivation of liberty caused by an order of pretrial detention is
consistent with state statutory and constitutional law
specifically addressing bail — a question not resolved here7 —
and with due process. While due process does not categorically
prohibit the government from ordering pretrial detention, it
remains true that “[i]n our society liberty is the norm, and
detention prior to trial or without trial is the carefully limited
exception.” (Salerno, supra, 481 U.S. at p. 755.)
Marking the boundary between the general rule and the
limited exception requires a careful balancing of the
government’s interest in preventing crime against the
individual’s fundamental right to pretrial liberty. (Salerno,
supra, 481 U.S. at pp. 749–750.) This territory has not yet been
fully mapped, but we can nonetheless discern that an order of
detention requires an interest that “is sufficiently weighty” in
the given case — and courts should likewise bear in mind that
Salerno upheld a scheme whose scope was “narrowly focuse[d]
on a particularly acute problem.” (Id. at p. 750.) Indeed, the

7
Because this case does not involve an order denying bail,
we leave for another day the question of how two constitutional
provisions addressing the denial of bail — article I, sections 12
and 28, subdivision (f)(3) — can or should be reconciled,
including whether these provisions authorize or prohibit
pretrial detention of noncapital arrestees outside the
circumstances specified in section 12, subdivisions (b) and (c).
(See In re White, supra, 9 Cal.5th at pp. 470–471.)

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Opinion of the Court by Cuéllar, J.

law under review there authorized pretrial detention “only on
individuals who have been arrested for a specific category of
extremely serious offenses.” (Ibid.; accord, Com. v. Vieira (Mass.
2019) 133 N.E.3d 296, 301 [“The practice of pretrial detention
on the basis of dangerousness has been upheld as constitutional
in part because the Legislature ‘carefully limit[ed] the
circumstances under which detention may be sought to the most
serious of crimes’ ”].)8
A court’s procedures for entering an order resulting in
pretrial detention must also comport with other traditional
notions of due process to ensure that when necessary, the
arrestee is detained “in a fair manner.” (Salerno, supra, 481
U.S. at p. 746; see Mathews v. Eldridge (1976) 424 U.S. 319,
335.) Among those fair procedures is the court’s obligation to
set forth the reasons for its decision on the record and to include
them in the court’s minutes. (See Cal. Const., art. I, § 28, subd.
(f)(3).) Such findings facilitate review of the detention order,
guard against careless or rote decision-making, and promote
public confidence in the judicial process. (Humphrey, supra, 19
Cal.App.5th at p. 1038; see In re John H. (1978) 21 Cal.3d 18,
23.)
Accordingly, striking the proper balance between the
government’s interests and an individual’s pretrial right to
liberty requires a reasoned inquiry, careful consideration of the
individual arrestee’s circumstances, and fair procedures. But —

8
Even when eligible for detention under constitutional and
statutory provisions, an arrestee who ends up detained “for
want of bail” may ask the court to reconsider the bail amount.
(Pen. Code, § 1270.2; see In re Avignone (2018) 26 Cal.App.5th
195, 200; see generally In re Weiner (1995) 32 Cal.App.4th 441,
444.)

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 In re HUMPHREY
Opinion of the Court by Cuéllar, J.

as both parties emphasize — this is not a case that requires us
to lay out comprehensive descriptions of every procedure by
which bail determinations must be made. We leave such details
to future cases. (See In re Nordin, supra, 143 Cal.App.3d at pp.
544–545, fn. 4.)
V.
In a crucially important respect, California law is in line
with the federal Constitution: “liberty is the norm, and
detention prior to trial or without trial is the carefully limited
exception.” (Salerno, supra, 481 U.S. at p. 755.) An arrestee
may not be held in custody pending trial unless the court has
made an individualized determination that (1) the arrestee has
the financial ability to pay, but nonetheless failed to pay, the
amount of bail the court finds reasonably necessary to protect
compelling government interests; or (2) detention is necessary
to protect victim or public safety, or ensure the defendant’s
appearance, and there is clear and convincing evidence that no
less restrictive alternative will reasonably vindicate those
interests. (See Humphrey, supra, 19 Cal.App.5th at p. 1026.)
Pretrial detention on victim and public safety grounds, subject
to specific and reliable constitutional constraints, is a key
element of our criminal justice system. Conditioning such
detention on the arrestee’s financial resources, without ever
assessing whether a defendant can meet those conditions or
whether the state’s interests could be met by less restrictive
alternatives, is not.
Because the trial court failed to determine whether
Humphrey had the financial wherewithal to post bail — and, if
not, whether less restrictive alternatives could reasonably have
satisfied the government’s compelling interest in seeking his

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 In re HUMPHREY
Opinion of the Court by Cuéllar, J.

detention — the Court of Appeal reversed the trial court’s bail
order and remanded for the court to conduct a new hearing.
Before we granted review, the trial court held that hearing and
released Humphrey under various nonfinancial conditions,
including his participation in a residential substance abuse
treatment program for seniors, electronic monitoring, and an
order to stay away from the victim and the victim’s residence.
In December 2018, Humphrey was released from his court-
ordered residential treatment program, but his other
nonfinancial conditions remained in place, along with a
requirement to attend Alcoholics Anonymous meetings and
outpatient treatment. No party sought relief from the Court of
Appeal’s judgment, and no party is seeking relief from the trial
court’s most recent ruling. We therefore affirm the judgment of
the Court of Appeal.
CUÉLLAR, J.

We Concur:
CANTIL-SAKAUYE, C. J.
CORRIGAN, J.
LIU, J.
KRUGER, J.
GROBAN, J.
JENKINS, J.

25
See next page for addresses and telephone numbers for counsel who argued in Supreme Court.

Name of Opinion In re Humphrey
__________________________________________________________________________________

Unpublished Opinion
Original Appeal
Original Proceeding
Review Granted XXX 19 Cal.App.5th 1006
Rehearing Granted

__________________________________________________________________________________

Opinion No. S247278
Date Filed: March 25, 2021
__________________________________________________________________________________

Court: Superior
County: San Francisco
Judge: Joseph M. Quinn

__________________________________________________________________________________

Counsel:

Civil Rights Corps, Alec Karakatsanis, Katherine C. Hubbard; Wilmer Cutler Pickering Hale and Dorr, Seth P.
Waxman, Daniel S. Volchok, Thomas G. Sprankling; Jeff Adachi, Public Defender, Matt Gonzalez, Chief Deputy
Public Defender, Paul Myslin, Christopher F. Gauge, Anita Nabha and Chesa Boudin, Deputy Public Defenders, for
Petitioner Kenneth Humphrey.

Bartell, Hensel & Gressley, Donald J. Bartell, Lara J. Gressley and Michael W. Donaldson for California DUI
Lawyers Association as Amicus Curiae on behalf of Petitioner Kenneth Humphrey.

Arnold & Porter Kaye Scholer, Krista Carter, Edmond Ahadome, Michael Isaacs and Oscar Ramallo for Human
Rights Watch as Amicus Curiae on behalf of Petitioner Kenneth Humphrey.

Pillsbury Winthrop Shaw Pittman, Thomas V. Loran III; Goodin, MacBride, Squeri & Day and Francine T. Radford
for the 22 Social Scientists as Amici Curiae on behalf of Petitioner Kenneth Humphrey.

Keker, Van Nest & Peters, Daniel Purcell, Maya Karwande, Divya Musinipally; and W. David Ball for Crime
Survivors for Safety and Justice as Amicus Curiae on behalf of Petitioner Kenneth Humphrey.

Micaela Davis; Peter Eliasberg; David Loy; Remcho, Johansen & Purcell, Robin B. Johansen and James C. Harrison
for ACLU of Northern California, ACLU of Southern California, ACLU of San Diego and Imperial Counties and
California law professors as Amici Curiae on behalf of Petitioner Kenneth Humphrey.

University of San Francisco School of Law, Lara Bazelon; Columbia School of Law, Kellen R. Funk; University of
Georgia School of Law and Sandra G. Mayson for National Law Professors of Criminal, Procedural, and
Constitutional Law as Amici Curiae on behalf of Petitioner Kenneth Humphrey.

McDermott Will & Emery, A. Marisa Chun and Sarah P. Hogarth for the Bar Association of San Francisco, The Los
Angeles County Bar Association and The Santa Clara County Bar Association as Amici Curiae on behalf of
Petitioner Kenneth Humphrey.
Todd W. Howeth and Michael C. McMahon for California Public Defenders Association and Public Defender of
Ventura County as Amici Curiae on behalf of Peitioner Kenneth Humphrey.

Bradley Arant Boult Cummings, J. Bradley Robertson, Candice L. Rucker, Rachel A. Conry and Kimberly M.
Ingram for California Association of Pretrial Services, National Association of Pretrial Services Agencies, Pretrial
Justice Institute and National Association for Public Defense as Amici Curiae on behalf of Petitioner Kennth
Humphrey.

Emily Ludmir Aviad; Michael L. Pomeranz; Jonathan L. Marcus, Paul M. Kerlin and Ryan J. Travers for Faith
Leaders and Organizations as Amici Curiae on behalf of Petitioner Kenneth Humphrey.

Venable, Alex M. Weingarten, Belinda M. Vega, Eric J. Blakewell, Matthew M. Gurvitz; and Robert M. Carlson for
American Bar Association as Amicus Curiae on behalf of Petitioner Kenneth Humphrey.

Institute for Constitutional Advocacy and Protection, Mary B. McCord, Douglas N. Letter, Joshua A. Geltzer and
Seth Wayne for current and former prosecutors and law enforcement officials as Amici Curiae on behalf of
Petitioner Kenneth Humphrey.

George Gascón, District Attorney, Sharon L. Woo, Chief Assistant District Attorney, Wade K. Chow, Assistant
Chief District Attorney, Allison G. Macbeth, Assistant District Attorney; Xavier Becerra, Attorney General, Gerald
A. Engler, Chief Assistant Attorney General, Jeffrey M. Laurence, Assistant Attorney General, Seth K. Schalit and
Katie L. Stowe, Deputy Attorneys General, for Respondent The People.

Summer Stephan, District Attorney, Mark A. Amador, Linh Lam and Marissa A. Bejarano, Deputy District
Attorneys for San Diego County District Attorney as Amicus Curiae on behalf of Respondent The People.

Law Offices of Donald Kilmer, Donald Kilmer and Jessica Danielski for Crime Victims United Charitable
Foundation as Amicus Curiae on behalf of Respondent The People.

Michael A. Ramos, District Attorney, and Brent J. Schultze, Deputy District Attorney, for District Attorney of San
Bernardino County as Amicus Curiae on behalf of Respondent The People.

Kent S. Scheidegger and Kymberlee C. Stapleton for Criminal Justice Legal Foundation as Amicus Curiae on behalf
of Respondent The People.

Albert W. Ramirez and Dale Christopher Miller for Golden State Bail Agents Association as Amicus Curiae.

Xavier Becerra, Attorney General, Edward DuMont, State Solicitor General, Gerald A. Engler, Chief Assistant
Attorney General, Jeffrey M. Laurence, Assistant Attorney General, Joshua Klein, Deputy State Solicitor General,
as Amicus Curiae.
Counsel who argued in Supreme Court (not intended for publication with opinion):

Daniel S. Volchok
Wilmer Cutler Pickering Hale and Dorr LLP
1875 Pennsylvania Ave. NW
Washington, DC 20006
(202) 663-6103

Alec Karakatsanis
Civil Rights Corps
1601 Connecticut Ave. NW, Suite 800
Washington, DC 20009
(202) 844-4975

Joshua A. Klein
Deputy State Solicitor General
1515 Clay Street, Suite 2000
Oakland, CA 94612
(510) 879-0756