Basically, in the 27 years that I've been practicing criminal defense, bail was pretty much controlled by a couple of things.

The judge would look at whether or not the defendant was a flight risk and whether or not the defendant was a danger to the community.

When looking at these things, there's a bunch of different subcategories that would be assessed by the judge in setting the person's bail or releasing them on their own recognizance, where they sign a promise to appear and don't have to put up any money or use a bail bondsman.

The End of Cash Bail

In 2018, the First District Court of Appeal fought California money bail system in California. The court the system violates due process and equal protection of defendants.

Their arguments were primarily due to the fact that the current money bail system imprisons citizens because they can't afford to pay bail.

Due to this ruling, the California Supreme Court had to review the system and consider a defendant's ability to pay bail when setting a bail amount to be released from custody.

Prior to this ruling, a defendant's ability to pay bail was not considered, but now the court has prohibited this type of detention.

The Humphrey Case

The case was brought by Kenneth Humphrey, joined by then Attorney General Xavier Bacerra, is the argument that nobody should lose the right to freedom because they can't afford to post bail.

Mr. Humphrey, 66, was arrested on May 23, 2017, as part of a long struggle with drug and alcohol addiction, was arrested again. This time, he was arrested and charged with first-degree residential robbery and burglary of an elderly victim.

He was accused of inflicting injury on an elder adult, and theft of an elder, a misdemeanor charge.

The elderly victim claimed Mr. Humphrey followed him into his apartment, located in San Francisco. Once inside, he allegedly demanded all his cash and told him he would be harmed if he didn't comply.

The victim told him he had no money, making Humphrey angry who then threw the victim's cell phone on the floor. The victim then gave him $2 in cash and some cologne before he finally exited the apartment.

The Arrest and Bail

Humphrey was arrested and then arraigned in court on May 31, 2017, where his public defender asked for a release on his own recognizance (OR), requesting no money bail would be set, due to his age and other factors.

Humphrey's prior felony convictions were very old and he had no arrests for the last 14 years, but still the prosecutor requested a $600,000 bail, which was approved by the judge.  After a bail hearing, the amount was lowered to $350,000.

A petition for a writ of habeas corpus was filed in the First Appellate District of California, Division Two.

The argument was that setting a bail amount as a condition of release the defendant can't pay is the same as a pretrial detention order and that detention was not necessary and violates the 14th Amendment's guarantees of equal protection and due process.

The appeals court agreed and ruled the court didn't consider whether Humphrey could realistically pay the required bail, there had to be a new hearing, which had to include his financial situation.

A new hearing was conducted and Mr. Humphrey was released, but was ordered to stay-away from the victim and to a substance abuse program.

Assessment of a Defendant's Economic Wealth

Back to present day, there's now a new factor at play which relates to the Humphrey case.

Basically what it has to do with, is that it's not fair if one person, for example, is charged with domestic violence and that person has a lot of money and they can easily post the $50,000.00 bail.

Whereas, somebody else, who has the exact same charges and set of circumstances, who doesn't have any money, can't post the bail.

That's where this Humphrey case comes in, and the judge must assess the person's economic wealth in setting their bail.

The judge will ask what the person makes per month, what type of responsibilities they have financially.

The Type of Crime Matters – Danger to the Community

Now, unfortunately, what a lot of people don't realize as I'm seeing people complain that they're not getting out related to a Humphrey's hearing is that they're also going to still look at the type of crime that the person is charged with.

For example, I had someone making a Humphrey's argument who was charged with a very serious sex-related offense, where they were basically breaking into women's houses and sexually assaulting them.

In that circumstance, the judge is going to find that this whole Humphrey's thing is outweighed by the person's dangerousness to the community.  That's usually what it is going to boil down to — danger to the community.  Yes, it's still important:

• whether or not that person is a flight risk,
• whether they've got a home in the community, and
• whether they have a job.

All of those things are very important.  But, I can tell you right now, as it relates to bail in Los Angeles County, they're going to look at:

• how dangerous that person is,
• how dangerous to the alleged victim in the case,
• how dangerous to other people in society.

So, if you can beat that argument, if you can mount the argument that the person is not dangerous in any way.

Then you're just left with the issue of whether or not that person is going to come back to court, or they have any failures to appear on their record, and once again, you put yourself in a great position if you can get around this argument of dangerousness to the community.

So, if you or a loved one has a criminal case in LA county, you've come to the right place.  Pick up the phone.  Ask for a meeting with Ron Hedding.

Not only can we help you with the case, we can also assist with figuring out the best strategy as it relates to bail.

Hedding Law Firm is located in Los Angeles County and we offer a free case consultation.