What is a “Humphrey Hearing”? A defense lawyer explains

In the California criminal justice system, a “Humphrey hearing” is a court hearing held soon after you are arrested for a crime. A judge holds the hearing to ensure that you are not kept in custody following an arrest because you do not have the financial resources to post bail for release.

You can be kept in custody without bail only if there is clear and convincing evidence that detention is necessary to protect public safety.

Note that bail is money that you must pay to the court so that you can get released from jail. Bail is used as a way to help ensure that you will show up for future court dates.

1. Is a Humphrey hearing a type of court appearance?

Yes. A judge holds a Humphrey hearing soon after you are arrested for a crime. During the hearing, the judge:

• examines your financial ability to post bail, and
• makes certain that you are not kept in jail simply because you do not have the financial means to pay bail.¹

It is against the California constitution for you to be held on criminal charges solely because you cannot afford to pay bail. This is true even if the bail amount is fair and not excessive (in alignment with the Eighth Amendment.)²

A judge can only keep you in custody in a criminal case without bail if the court finds strong evidence to show that custody is necessary to protect public safety. In many cases, public safety can be protected through electronic monitoring, house arrest, retraining orders, curfews, and other measures short of jail.³

The Humphrey case

A “Humphrey hearing” gets its name from Kenneth Humphrey, who was a real defendant in a California Court of Appeals case. Kenneth Humphrey was arrested on May 23, 2017 on charges of:

• residential burglary,
• causing injury on an elderly victim, and
• misdemeanor theft.

He also had four previous “strike” convictions, prompting the judge to impose a $600,000 bail (later reduced to $350,000). The Court of Appeals ruled that the trial court’s failure to consider Mr. Humphrey’s financial situation and ability to pay bail was a violation of his constitutional rights.⁴ On remand, the trial court released the defendant on the condition he:

• submit to electronic monitoring,
• abide by a protection order, and
• do rehab for drugs.

This case prompted various agencies such as the San Francisco District Attorney’s office to ask the California Supreme Court to provide guidance to prosecutors about bail. Ultimately, the California Supreme Court said that,

“liberty is the norm, and detention before trial or without trial is the carefully limited exception.”

To justify its position, the Court relied on Due Process and Equal Protection principles. It also cited studies that showed pretrial detention can cause defendants to lose their job, home, and child custody. Furthermore, housing and feeding pretrial detainees is costly for taxpayers in California, which has higher pretrial detention rates than other states.

2. What happens at a Humphrey hearing?

During a Humphrey hearing, the judge will typically evaluate your financial status and your ability to pay money bail. A judge may ask you such questions as:

• What do you do for work?
• What is your salary or how much money do you make?
• Outside of work, do you have any other sources of money?
• What is your family situation?

If a judge finds that your ability to pay bail is a real issue, the judge can set bail accordingly. For example, the judge may lower the amount of bail from the amount the judge would typically set in similar cases.

3. How much is bail?

Each California county has its own bail schedule that sets forth bail amounts. The specific amount of bail will usually vary depending on the particular crime that a district attorney files.⁵

Issues involving bail amounts and pretrial detention/pretrial release are usually resolved during your:

• arraignment, or
• bail hearing.

You can typically post bail by means of:

• cash bail,
• a bail bond, or
• a property bond.

4. Is bail used in every criminal case?

No. There are many times when a judge grants “own recognizance” release.

With an “own recognizance” release, a judge releases you from jail without you having to post bail. Own recognizance release is sometimes referred to as “O.R. release.”

Since you do not have to pay bail with O.R. release, a judge essentially releases you from custody based solely on your promise to attend all future court dates.

Judges usually grant O.R. release in cases involving a:

• misdemeanor, or
• non-serious felony.

Bail is often reserved for cases involving serious or violent felonies.

Two things usually take place if you do not show up for a court appearance on O.R. release:

1. a judge will issue a bench warrant for your arrest, and
2. you will be charged with “failure to appear.”

The penalties for failure to appear will vary depending on whether the original crime you were charged with was a misdemeanor or felony.

Courts must take into consideration a defendant’s ability to pay bail when determining whether to detain them prior to trial.

Additional reading

For more in-depth information, refer to these scholarly articles:

• SB 10: Punishment before Conviction: Alleviating Economic Injustice in California with Bail Reform  – University of the Pacific Law Review.
• Assessing the Impact of Bail on California’s Jail Population – Public Policy Institute of California.
• Beyond Bail  – Florida Law Review.
• Racial Bias in Bail Decisions – The Quarterly Journal of Economics.
• A Brief History of Bail – Judges Journal.

Also see our related articles on PC 1275 holds and getting your bail money back.