Statement: Humphrey Ruling Represents Momentous Shift in Legal Rules around Pretrial Detention and Bail

Humphrey Ruling Represents Momentous Shift in Legal Rules around Pretrial Detention and Bail

Now, we need legislative changes that honor the presumption of innocence by limiting judges’ ability to incarcerate people pretrial.

Los Angeles, CA – March 26, 2021 – In the case In re Humphrey, the California Supreme Court found yesterday that judges in the state violate the US Constitution by setting unaffordable bail amounts that keep people in pretrial custody on mere accusations. In a unanimous vote, they ordered judges to release people with non-financial conditions if possible and to only set bail in affordable amounts after determining a person’s ability to pay. This ruling represents a momentous shift in the legal rules around pretrial detention and bail.

The Court acknowledged many well-documented harms of pretrial detention: it punishes people presumed to be innocent without them having been convicted; it costs taxpayers greatly; it causes people to lose jobs, homes, healthcare, connection to family. Strangely absent from the Court’s list of harms was that pretrial detention coerces people to plead guilty regardless of actual guilt because prosecutors and judges offer freedom in exchange for guilty pleas.

While the Court ordered changes to how money bail can be set, they did not address the bigger question of when judges may simply detain people without setting bail. They said that a judge may detain a person pretrial without setting bail if the judge finds that person is a risk to “public safety” or a risk of fleeing to avoid prosecution, but they did not say whether that power applied to all accused people or just those accused of certain crimes.

Judges, who have traditionally used money bail to hold people in custody pretrial, have argued that they can simply order anyone detained without even setting bail. The Humphrey decision avoided setting limits on who judges can “preventively detain,” deferring that decision for another day. Similarly, the Humphrey decision did not detail what procedures are required for a judge to decide whether to detain someone, leaving an accused person’s right to due process in doubt.

Given how judges have used pretrial detention through money bail as a tool to efficiently coerce guilty pleas, the Humphrey decision leaves us concerned that judges will simply adjust by ordering preventive detention instead.

The decision underscores the need for legislative changes that honor and preserve the presumption of innocence by limiting judges’ ability to incarcerate people pretrial. Legislation should set up legal standards and procedures that guarantee due process and fair hearings. It should prevent judges from imposing burdensome release conditions, like electronic monitoring and drug testing, that set people up for re-incarceration. It should establish pretrial services agencies, independent of law enforcement, that help people get to court while ensuring safety for all people involved. JusticeLA and the Care First California coalition will soon be releasing a legislative proposal that does these things.

Meanwhile, Sen. Hertzberg’s bill, SB 262, which sets $0 bail for most offenses at arrest and booking, is a start to fixing some of the reform needs highlighted by the Humphrey decision, particularly if that bill is amended to, among other things, better define the ability to pay determination and to limit judges’ ability to subsequently detain people.

The California Supreme Court has made a powerful statement, condemning the use of money bail to detain poor people pretrial as an unconstitutional use of power. However, they have left open too many ways for judges to continue to treat people unfairly and use pretrial detention against them. We must take the next steps and legislate limits that make the criminal legal system fairer and that honor and preserve the presumption of innocence.



L.A. County’s Bail Reform Proposal Lacks Actual Reform

L.A. County’s Bail Reform Proposal Lacks Actual Reform

JusticeLA releases detailed report on Bail Reform Motion

LOS ANGELES, CA –  – JusticeLA, a grassroots coalition of organizations fighting the $3.5 billion expansion to L.A. County’s jail system, today released a critical report describing in detail a continued institutional commitment by the County of Los Angeles to attempt to triage a flawed money bail system rather than address the  profound structural inequalities of the current pretrial system including the racial and economic disparities in the criminal justice system. Authored by Ivette Alé, Statewide Coordinator for Californians United for a Responsible Budget (CURB) and Lex Steppling, Lead National Organizer for JustLeadershipUSA , the report is in response to the L.A. County Office of County Counsel’s report commissioned by the Board of Supervisors regarding their 2017 Bail Reform motion authored by Supervisors Sheila Kuehl and Hilda Solis.

A recent study by UCLA’s Million Dollar Hoods Project reveals that $19.4 billion of money bail was levied on persons arrested by the LAPD between 2012 and 2016. Of the $198.8 million paid in nonrefundable bail bond deposits to bail bond agents, Latinos paid $92.1 million, African Americans paid $40.7 million, and Whites paid $37.9 million. But most money bail was never paid, leaving 223,366 people in LAPD custody before arraignment during that four year span.

The study also found that Black and Latinx women disproportionately paid the nonrefundable bail bond deposits. Pretrial incarceration compromises the public safety of everyone and shifts the financial burden to vulnerable communities, but the answer is not an expansion of community surveillance. We will not accept a bail system or “reform” that continues to devastate lives while furthering home jailing through restrictive pretrial release conditions.

Grassroots efforts to overhaul bail systems and reduce the number of people who are incarcerated exist from coast to coast and have facilitated a moment of inevitable change. It forces us to ask the L.A. County Board of Supervisors and Los Angeles County Counsel–the Board of Supervisors legal advocates and advisers–what are the real goals of the “bail reforms” on the table?

Pseudo reforms like the use of algorithm-based risk assessment tools, electronic monitoring, and onerous systems-driven pretrial release conditions cannot replace a money bail system – because they are, in fact, an extension of it. These “reforms” made under the guise of equity, fairness, and efficiency, would only further entrench a pretrial system intent on the criminalization of low-income communities and communities of color. While SB 10, the California Money Bail Reform Act of 2017, seeks to address the inequities of money bail at the state level, it may fail to include proper protections against the expansion of surveillance and harmful risk assessment tools. L.A. County has the opportunity to lead California in genuinely restorative pretrial practices that focus on needs and community-based support.

Constituents and advocates directly impacted by the jail crisis know what meaningful bail reform looks like. The entities that the Board of Supervisor’s County Counsel consulted in this process do not represent directly impacted voices or communities and seem to have one thing in common: an institutional commitment to the expansion and continued development and implementation of risk assessment tools.  Included in this is the reality that in some cases there are fiscal commitments to furthering the use of algorithm-based risk assessment tools in the pretrial system.


The report can be downloaded at