If you or a loved one has been arrested in California, one of the first questions may be whether the person will remain in jail while the criminal case is pending.
In California, a court may consider bail and other forms of pretrial release after an arrest. But a person generally cannot be kept in custody solely because they do not have enough money to pay a particular bail amount.
This is the basic principle behind what is commonly called a Humphrey hearing.
A Humphrey hearing gets its name from the California Supreme Court’s decision in In re Humphrey, which addressed the constitutional requirements that apply when courts determine whether an arrested person should be released before trial and whether monetary bail is appropriate.
The law has continued to develop since Humphrey. In April 2026, the California Supreme Court issued its decision in In re Kowalczyk, providing additional guidance concerning pretrial detention, bail, and a defendant’s ability to pay.
So, what exactly is a Humphrey hearing, what happens during one, and how does California’s bail system work today?
What Is a Humphrey Hearing in California?
A Humphrey hearing is a court proceeding concerning pretrial release, detention, and bail in which the constitutional principles established by In re Humphrey are relevant.
The central issue is that a person’s financial resources should not, by themselves, determine whether that person remains in jail before trial.
For example, suppose a judge determines that bail should be $50,000.
One defendant may have sufficient financial resources to post the required bail and obtain release. Another defendant may have very limited financial resources and be unable to pay the same amount.
If the second defendant remains in jail simply because they cannot afford the bail, the monetary condition may effectively become the reason for their detention.
The California Supreme Court held that this type of financial barrier to pretrial liberty must be examined under constitutional standards.
The court therefore requires an individualized approach to bail and pretrial release.
What Did the California Supreme Court Decide in In re Humphrey?
The Humphrey case involved Kenneth Humphrey, who was arrested in 2017 in San Francisco.
He was charged with offenses including residential burglary, causing injury to an elderly person, and misdemeanor theft. He also had prior serious felony convictions that affected the bail determination.
The trial court initially set bail at $600,000 and later reduced it to $350,000.
Mr. Humphrey could not afford the amount.
The California Court of Appeal concluded that the trial court had failed to properly consider his ability to pay and whether less restrictive alternatives to money bail could reasonably protect the public and ensure his appearance in court.
The case ultimately reached the California Supreme Court.
In its 2021 decision, the California Supreme Court held that conditioning pretrial liberty solely on whether a defendant can afford bail is unconstitutional.
The Court emphasized the importance of an individualized determination and explained that courts should consider whether less restrictive alternatives could adequately address legitimate concerns involving public safety, victim safety, and court appearance.
The decision is the source of the term “Humphrey hearing.”
Why Does Ability to Pay Matter?
The ability to pay matters because a bail amount can have very different consequences for different people.
Consider two defendants who are facing similar charges.
The court sets bail at $25,000 for each person.
The first defendant has $25,000 readily available and posts bail.
The second defendant has very little money, cannot obtain the necessary funds, and remains in custody.
Although the court technically imposed the same bail amount on both defendants, the practical consequences are very different.
The first defendant is released.
The second defendant is incarcerated.
The Humphrey decision requires courts to consider this difference rather than treating the ability to pay as irrelevant.
However, this does not mean that a defendant automatically receives release simply by saying that bail is unaffordable.
The court can consider reliable evidence concerning the defendant’s financial circumstances as part of the overall analysis.
What Happens at a Humphrey Hearing?
There is not one identical procedure used in every California case called a “Humphrey hearing.”
Generally, however, the court considers whether the defendant should remain in custody, whether monetary bail is appropriate, and whether conditions of release could adequately address the concerns identified by the court.
Depending on the circumstances, the court may consider:
- The nature and seriousness of the alleged offense
- Public safety
- The safety of an alleged victim
- The defendant’s criminal history
- The defendant’s history of appearing in court
- Previous compliance with court orders
- The defendant’s financial circumstances
- The defendant’s ability to pay monetary bail
- Whether less restrictive conditions could reasonably address the relevant concerns
The court’s decision should be based on the individual circumstances rather than simply applying a predetermined dollar amount without considering the defendant’s situation.
What Questions Might a Judge Ask About Ability to Pay?
When financial circumstances are relevant, the court may consider information about the defendant’s financial resources.
For example, questions may concern:
- Where the defendant works
- How much the defendant earns
- Whether the defendant has other sources of income
- Whether the defendant owns property or other assets
- Whether the defendant has significant debts or expenses
- Whether other financial resources are realistically available
The precise information considered will depend on the circumstances.
A defendant claiming that bail is unaffordable should not assume that a simple statement of inability to pay will automatically establish the claim.
Under the California Supreme Court’s current law, the court can consider evidence concerning the defendant’s actual financial circumstances.
Can a Judge Set Bail That a Defendant Cannot Afford?
This is one of the most important questions following the California Supreme Court’s 2026 decision in In re Kowalczyk.
The answer is more nuanced than simply saying that “bail must always be affordable.”
In Kowalczyk, the California Supreme Court clarified that, when pretrial detention is not constitutionally authorized, monetary bail generally must be reasonable and attainable based on an individualized assessment of the totality of the circumstances.
The court cannot simply use an objectively unattainable bail amount as a substitute for a lawful detention order in circumstances where the Constitution does not authorize detention.
At the same time, the court does not have to accept an unsupported claim that a defendant cannot afford bail.
For example, imagine that bail is set at $100,000.
The defendant says, “I cannot afford that.”
The court may need to examine the defendant’s actual financial circumstances, including income, assets, debts, and other available resources.
If the evidence establishes that the defendant genuinely lacks the financial ability to satisfy the bail amount, that information must be considered.
The court must also consider the other circumstances relevant to pretrial release and detention.
What Did In re Kowalczyk Change?
In re Kowalczyk, decided by the California Supreme Court on April 30, 2026, is now an important part of understanding California bail law.
The case addressed two significant constitutional questions concerning pretrial detention and bail.
First, the Court clarified the relationship between Article I, section 12 and Article I, section 28(f)(3) of the California Constitution.
The Court held that Article I, section 12 governs the constitutional circumstances in which bail may be denied in noncapital cases. Section 28(f)(3), which addresses consideration of public and victim safety, does not independently expand those categories of cases in which a person may be detained before trial.
Second, the Court addressed whether a superior court may set bail above a defendant’s ability to pay.
The Court explained that when pretrial detention is not authorized, bail generally must be reasonable and attainable based on an individualized assessment of the totality of the circumstances.
This is an important update for anyone researching a Humphrey hearing in California, because Kowalczyk provides additional guidance on the relationship between affordability, reasonable bail, and pretrial detention.
Can Someone Be Held Without Bail in California?
California law does permit pretrial detention in certain circumstances.
It would therefore be inaccurate to say that a person can never be held without bail.
California Constitution article I, section 12 identifies circumstances in which bail may be denied in certain noncapital cases. The constitutional requirements depend on the offense and circumstances involved.
In cases where pretrial detention is constitutionally authorized, the court must comply with the applicable constitutional requirements and evidentiary standards.
In other cases, the court must consider whether release is appropriate and whether reasonable conditions can address legitimate concerns.
The important distinction is that a court generally cannot accomplish detention merely by setting an objectively unattainable bail amount when detention is not otherwise constitutionally authorized.
What Does Clear and Convincing Evidence Mean?
The phrase “clear and convincing evidence” is important in certain California pretrial detention decisions.
It is a higher standard than the ordinary civil standard known as a preponderance of the evidence.
It is lower than the beyond a reasonable doubt standard required for a criminal conviction.
Where California’s Constitution requires clear and convincing evidence for a particular pretrial detention determination, the court must apply that standard when making the required findings.
It is important, however, not to describe every bail hearing as requiring the same clear-and-convincing-evidence analysis. The applicable standard depends on the constitutional provision and circumstances involved.
What Are Alternatives to Pretrial Detention?
One of the important principles arising from Humphrey is that courts should consider whether less restrictive alternatives can reasonably address legitimate concerns before relying on monetary bail that would result in continued incarceration.
Depending on the circumstances and the court’s legal authority, potential conditions can include:
- Electronic monitoring
- Stay-away orders
- Restrictions on contact with particular individuals
- Curfews
- Supervision or reporting requirements
- Treatment or rehabilitation requirements
- Other appropriate conditions of release
These conditions are not automatically available or appropriate in every case.
For example, a defendant who presents a particular concern involving an alleged victim might be subject to restrictions concerning contact with that person. Another defendant might be subject to electronic monitoring or reporting requirements.
The purpose is to determine whether reasonable conditions can address the concerns identified by the court without unnecessarily keeping the defendant in custody.
What Is Bail in California?
Bail is a financial mechanism associated with pretrial release.
The basic purpose of bail is to provide a financial incentive for a defendant to appear for required court proceedings.
California courts may use different forms of bail, depending on the circumstances and applicable law.
These can include:
- Cash bail
- A surety bond obtained through a bail bond company
- Certain property-based forms of bail when legally permitted
The precise procedures for posting bail can vary.
Bail should not be confused with a criminal fine or punishment. A person who posts bail has not been convicted simply because bail was required.
The criminal case continues after release unless and until it is otherwise resolved.
How Much Is Bail in California?
California counties have historically used bail schedules that provide standard amounts for various offenses.
However, a bail schedule does not eliminate the need for an individualized determination when constitutional bail requirements apply.
The actual bail amount in a particular case can depend on factors such as:
- The charges
- The circumstances of the alleged offense
- The defendant’s criminal history
- Public safety considerations
- Victim safety
- Court appearance concerns
- Financial circumstances
- Applicable constitutional and statutory requirements
A person should therefore not assume that the amount listed on a county bail schedule is necessarily the final constitutionally appropriate bail amount for that individual.
Is Bail Required in Every California Criminal Case?
No.
A person may sometimes be released without posting monetary bail.
One common form of release is release on one’s own recognizance, often called O.R. release.
When someone is released on their own recognizance, they generally do not have to post monetary bail as a condition of release. Instead, the person is released subject to the applicable terms and their promise to appear for required court proceedings.
O.R. release is not limited by a simple rule stating that all misdemeanors qualify or that all non-serious felonies qualify.
Courts consider the circumstances of the particular case and the requirements of California law.
What Happens If Someone Released on Their Own Recognizance Does Not Appear?
A person released on their own recognizance is generally required to attend future court proceedings.
Failing to appear can result in serious consequences.
Depending on the circumstances, the court may issue a warrant for the person’s arrest, and the person may face a separate failure-to-appear charge under California law.
The potential consequences depend on factors including the underlying offense and the circumstances surrounding the failure to appear.
For that reason, a person released on O.R. should take all court dates and release conditions seriously.
Is a Humphrey Hearing the Same as a Bail Reduction Hearing?
Not necessarily.
A bail reduction hearing generally focuses on whether an existing bail amount should be reduced.
A hearing addressing Humphrey principles can involve broader questions concerning:
- Whether monetary bail is appropriate
- Whether the defendant can reasonably afford the proposed bail
- Whether less restrictive release conditions are available
- Whether continued detention is constitutionally authorized
- Whether the proposed bail amount is reasonable under the circumstances
The terminology used by courts and attorneys can vary, so it is more important to understand what issues the court is actually considering.
When Does a Humphrey Hearing Take Place?
A bail or pretrial-release determination may take place relatively soon after an arrest, but the exact timing depends on the case and the court’s procedures.
Bail issues can arise at or around an arraignment or another pretrial proceeding.
A later hearing may also occur if the court needs to reconsider bail, additional information becomes available, circumstances change, or a party seeks review of a prior decision.
There is therefore no single statewide rule that every Humphrey hearing must occur at exactly the same time after arrest.
What Evidence Can Help Establish Inability to Pay Bail?
When a defendant’s ability to pay is disputed, financial information can be relevant.
Depending on the circumstances, this might include information concerning:
- Employment
- Wages or salary
- Bank accounts
- Property
- Investments
- Debts
- Monthly expenses
- Other sources of income
- Other resources that are realistically available
The court evaluates the evidence in the context of the defendant’s overall circumstances.
A defendant should not assume that the court will automatically accept an unsupported assertion of poverty or inability to pay.
Likewise, the fact that someone has some financial resources does not necessarily mean that any bail amount is attainable.
The purpose is an individualized assessment.
What Is an Example of a Humphrey Hearing?
Consider a hypothetical defendant who is arrested and charged with a felony.
A bail schedule might indicate a substantial amount of bail for the alleged offense.
The defendant cannot afford that amount and remains in custody.
At a bail hearing, the court considers the defendant’s financial circumstances, criminal history, history of appearing in court, the circumstances of the alleged offense, and any concerns involving public or victim safety.
The court also considers whether appropriate release conditions could reasonably address those concerns.
If the court determines that detention is not constitutionally authorized and that the proposed bail amount is objectively unattainable for the defendant, the court generally cannot simply use that amount to accomplish detention.
On the other hand, if the circumstances establish that detention is constitutionally authorized, the analysis is different.
This example illustrates why a Humphrey hearing is not simply a negotiation over a dollar amount.
What Is the Main Purpose of a Humphrey Hearing?
The fundamental purpose is to ensure that pretrial liberty and detention decisions comply with constitutional requirements.
The California Supreme Court has recognized that pretrial release is generally favored and detention before trial is a limited exception.
At the same time, California law recognizes legitimate interests in:
- Protecting public safety
- Protecting victims
- Ensuring defendants appear in court
- Addressing circumstances in which constitutional detention is authorized
A Humphrey hearing requires the court to balance these considerations through an individualized process rather than allowing a person’s financial circumstances alone to determine whether they remain in jail.
Frequently Asked Questions
What is a Humphrey hearing?
A Humphrey hearing is a court proceeding concerning pretrial release, detention, and bail that applies the constitutional principles established by In re Humphrey. The court considers whether monetary bail is appropriate, the defendant’s ability to pay, public and victim safety, and whether less restrictive alternatives can reasonably address the relevant concerns.
Why is it called a Humphrey hearing?
The term comes from Kenneth Humphrey, whose case ultimately reached the California Supreme Court. The Court’s 2021 decision established important constitutional requirements concerning bail and pretrial release.
Does a Humphrey hearing guarantee release?
No. A Humphrey hearing does not guarantee that a defendant will be released. California law permits detention in certain constitutionally authorized circumstances.
Can someone be held in jail simply because they cannot afford bail?
Generally, no. California’s constitutional framework does not permit a person to be held solely because they lack the financial resources to pay bail.
Does the judge have to accept a defendant’s statement that they cannot afford bail?
No. The court may consider reliable evidence concerning the defendant’s financial circumstances. A bare assertion of inability to pay is not necessarily sufficient.
Can a judge set bail above what a defendant can afford?
Following In re Kowalczyk, when pretrial detention is not constitutionally authorized, bail generally must be reasonable and attainable based on an individualized assessment of the totality of the circumstances. An objectively unattainable bail amount generally cannot be used as a substitute for an otherwise unauthorized detention order.
Can bail be denied in California?
Yes, in certain constitutionally specified circumstances. California Constitution article I, section 12 identifies circumstances in which bail may be denied in certain noncapital cases, subject to the applicable constitutional requirements.
What are alternatives to money bail?
Depending on the circumstances and legal authority, alternatives can include release on one’s own recognizance, supervision, electronic monitoring, curfews, stay-away requirements, and other appropriate conditions.
Is bail required in every criminal case?
No. Some defendants are released without monetary bail, including through O.R. release when appropriate.
What happens if someone violates their release conditions?
The consequences depend on the particular condition and circumstances. A court may modify or revoke release, issue a warrant, or impose other consequences authorized by law. A failure to appear can also potentially result in additional criminal consequences.
Understanding Your Rights at a California Bail Hearing
California’s bail system can be complicated because it involves constitutional provisions, statutes, court rules, judicial decisions, and case-specific circumstances.
The key principle established by Humphrey is that a person’s financial resources cannot, by themselves, determine whether that person remains in custody before trial.
The 2026 Kowalczyk decision provides additional guidance by clarifying the constitutional limits on pretrial detention and explaining that, when detention is not authorized, monetary bail generally must be reasonable and attainable based on an individualized assessment of the totality of the circumstances.
That does not mean every defendant is entitled to release without conditions. It also does not mean every claim of inability to pay must be accepted. The court must consider the circumstances and evidence presented in the individual case.
Contact Southwest Legal
Have Questions About a Humphrey Hearing or Bail?
Being arrested can be overwhelming, especially when you or someone you love is sitting in jail and you are unsure what happens next. Understanding California’s bail and pretrial release laws can help you make informed decisions during an important stage of a criminal case.
If you are dealing with a Humphrey hearing, unaffordable bail, or a pretrial detention issue in California, Southwest Legal can help you understand the legal process and your available options.
Don’t navigate a complicated bail situation without understanding your rights. Contact us today for a free consultation to learn more about the California bail and pretrial release process.
Disclaimer: This article is for general informational purposes only and does not constitute legal advice or create an attorney-client relationship. No attorney-client relationship is formed unless and until the firm and client enter into an agreement for legal services. Laws may change, and legal outcomes depend on the specific facts of each case. Consult a qualified attorney for advice regarding your situation.