On May 9, 2018, Kenneth Humphrey took his first breath as a free man after nearly a year in jail in San Francisco. At age 64, the Black retiree with a wry smile and salt-and-pepper goatee walked out of custody with a new lease on life, albeit with an ankle bracelet and an amazing story to tell.

His case inspired a landmark decision that year, when the state’s First District Court of Appeal in San Francisco ruled that judges must consider a defendant’s ability to pay when setting bail terms.

“Mr. Humphrey has been in custody for almost a year without receiving a bail hearing that meets minimum constitutional standards,” said San Francisco Deputy Public Defender Chesa Boudin — now the city’s District Attorney — during a press conference at the time of Humphrey’s release. “He’s one of literally tens of thousands of people across the state of California sitting in jail simply because they’re too poor to purchase their freedom.”

Humphrey, a retired shipyard laborer, was accused on May 24, 2017 of entering his 79-year-old neighbor’s apartment, threatening him, and stealing $5 and a bottle of cologne. For that, he was arrested and charged with robbery, burglary, elder abuse, and theft. But the bail, which was set at a whopping $600,000, hardly seemed to fit the crimes he was accused of.

Paul Myslin, who was also one of Humphrey’s original public defenders who now works for CEB, remembers the case that came to embody the flawed cash bail system.

“Did I feel like it was a special case? Yeah, I would say so,” Myslin said. “This is one of those cases where it didn’t feel like it should be charged in this way and it didn’t feel like the guy should be facing such a high bail.”

The judge eventually lowered bail to $350,000 after Myslin and his team argued that the initial amount was excessive and that Humphrey did not pose a risk to the public.

Meanwhile, prosecutors tried to keep Humphrey locked up, citing a couple previous robbery convictions dating back to the ‘80s and ’90s. They said these old offenses categorized Humphrey as a threat to public safety, showing a pattern of preying on vulnerable victims. But despite a long court battle and months of uncertainty while Humphrey remained incarcerated, the prosecution’s case didn’t stick.

Together with Alec Karakatsanis of Civil Rights Corps, Humphrey’s attorneys filed a writ of habeas corpus in the First District Court of Appeal which ruled in favor of Humphrey, holding that California’s money bail system violated his due process and equal protection rights. The ruling required trial court judges to consider a defendant’s ability to pay as well as non-monetary options for release when determining a bail amount or setting conditions of release. The opinion, authored by Presiding Judge Anthony Kline, joined by Judges Therese M. Stewart and Marla J. Miller, allowed Humphrey to be released from jail in May of 2018.

Two years later, the case is still set to be reviewed by the California Supreme Court (review granted May 23, 2018, S247278; opinion at 19 Cal.App.5th 1006) to determine what precedent it sets for bail reform. Oral arguments for the case have been delayed numerous times since 2019 (no date has been set yet for 2021), but the wait could be worth it. The decision by the Supreme Court may have widespread effects on bail reform in the wake of the recently defeated Proposition 25–a veto-referendum on 2018’s Senate Bill 10 (SB-10).

If it had succeeded, the measure would have replaced the state’s cash bail system with a risk assessment-based bail system, which uses an algorithm to determine whether a suspect should be released. A “Yes” vote on Prop 25 would’ve allowed California to uphold the contested legislation to replace cash bail with risk assessments, and a “No” vote was to repeal the contested legislation and continue the system of cash bail.

By Nov. 5–two days after the election– 55% of voters said “No” to Prop 25, supporting the continuation of the current cash bail system indefinitely. No county south of Santa Cruz in the Bay Area supported Proposition 25–a decisive defeat and a sharp contradiction to two other justice system measures that passed, one expanding voting rights to parolees and another blocking a plan to make harsher penalties for low-level offenses.

“It was a tough fight for us going in,” Senator Bob Hertzberg (D-Van Nuys) who authored SB 10, told reporters during a press conference following the measure’s defeat. “I think it was a lot of confusion. You get a lot of drop off when you get to the end of the ballot. And it’s just easier to say no.”

So what happened? Why was a proposition that on paper sounded like it could’ve avoided the criminally high bail not met with a welcoming reception from left-leaning activists and civil rights groups like the ACLU?

Considering a case like Humphrey’s, where a client’s ancient history of offenses were used to draw a pattern of current behavior while at the same time neglecting to look at his financial situation and ability to pay an obscenely high bail, the thought of using an algorithm to determine bail just didn’t seem to sit well with prison advocate groups, politicians and voters alike, who saw it as yet another way for the system to punish the poor and people of color.

“With an algorithm like this it’s garbage in, garbage out–it’s only as good as the data you put in and the way that it’s designed to interpret that data,” Myslin says. “So if you have inherent racism or other kinds of things built into it, then of course it’s going to be skewed.”

Why Did Prop 25 Fail?


On paper, Prop 25 should have appealed to proponents of criminal justice reform. Champions of the bill included The California Democratic Party, Democratic Gov. Gavin Newsom and congressional leaders such as Rep. Karen Bass.

But opponents of Prop 25, including the ACLU, Human Rights Watch, and the nonprofit coalition JusticeLA, argued that the risk assessment tools rely on racially biased information like demographic, criminal history and socioeconomic status as indicators of recidivism. They worry that California would be building one deeply flawed system on top of another. According to some studies, they might be right.

As of 2019, 49 of the state’s 58 counties may have used pretrial risk assessment tools (i.e., algorithms), according to the Public Policy Institute of California (PPIC). But it’s hard to infer how well those algorithms can predict a defendants’ future behavior.

In another recent study from UC Berkeley’s California Policy Lab, researchers pored over bookings in San Francisco and Sonoma Counties in 2017 and 2018, trying to quantify how much these tools could help if Prop 25 passes. They found that if Prop 25 had been law, the percentage of cases eligible for pretrial release would climb from 44% to 59% in San Francisco and from 63% to 66% in Sonoma County. However, while the researchers found that release rates would rise among all racial groups, there would still be disparities in pretrial releases — particularly for Black people, who make up roughly 13% of the US population but 27% of arrests.

Critics worry tools like algorithms will simply perpetuate racial inequality in policing due to the racially-skewed data they rely on — which typically includes the defendant’s age and arrest history. The use of these algorithm-driven computer programs is so controversial that some former supporters have switched sides, coming out against risk assessments.

Another big criticism of Prop 25 was its ability to let local counties opt out of using algorithms for certain crimes, including domestic violence. Every county gets to make those sorts of decisions on their own, which then gives the discretion to the local judges.

In San Francisco, Myslin says courts used the Arnold Foundation Algorithm, a pretrial risk assessment tool called the PSA (Public Safety Assessment). However, it is often met with resistance in court.

“A lot of the times, the judges would decline to follow it. They’d say, ‘I know what the computer said but I’m not comfortable releasing this guy,’ or the DA would oppose and be like, ‘Well, Your Honor, it says release but here’s all the reasons why you should not follow it in this case,’” Myslin recalled.

Some attorneys say that if you take away cash bail completely, then you’re at the mercy of the computer. If the computer says no, you’re stuck in jail until you plead out or go to trial. Even with the flawed bail system where court decisions often skews favorably to those who can pay, taking the bail option away entirely is not something that Californians are ready for yet.

“People did not want to give up their right to bail out their friends and family,” said Jeff Clayton, executive director of the American Bail Association. “I don’t think going to the ‘no money bail’ system is going to happen — that (was) the point of the referendum.”

Shooting Some Bail to the Bail Bonds Industry


Of course, some proponents of bail reform look at the bail bonds industry with disdain for the disparities in bail fees for various crimes.

There are more than 25,000 bail-bond companies in the U.S., with only about 10 insurers who are responsible for underwriting the bulk of the $14 billion in bonds issued annually. The industry as a whole brings in around $2 billion in profit a year.

But while the industry is trying to preserve its own existence by trying to block the use of algorithms, bail bonds companies are not actually the ones responsible for what it costs to bail a person out.

The amount set for bail is decided by the annual bail schedules. Every year, counties come up with these schedules that detail the cost of bail depending on what crime is being charged. Bail is set by a judge according to the schedules. In this process, the bail bonds companies fill the gap in the middle for people who don’t have thousands of dollars on hand to pay to get out. Bond companies charge a fee — usually 10% — and arrange with the courts to have the defendant released from jail. The money is nonrefundable.

“I’ve never seen a bail bondsman come in and ask for higher bail just because they want to make a bigger profit,” Myslin said. “They’ll make their 10% no matter what. I’m not an advocate for the bail industry, but I don’t think they’re necessarily the bad guy here.”

Not surprisingly, the bail industry tends to see it the same way.

“We do not want bail being used as a form of punishment,” said Topo Padilla, president of the Golden State Bail Agents Association, who says the problem is not with his industry but with local justice systems. “We do not want bail to be used to keep people in jail longer.”

One of the interesting threads to the story of Prop 25’s defeat is the unlikely colliding of interests between liberal justice system advocates and the bail bond industry. Though they are traditionally enemies, both sides together undid a years-long effort from the California Legislature that could have ended cash bail and created one of the most consequential justice system changes in recent history.

“It was a case of the kind of far left and far right converging and not a lot of space left in the middle to get rid of cash bail,” said Keramet Reiter, a criminologist at UC Irvine.

How Do We Replace the Cash Bail System?


Though it’s clear that the cash bail system isn’t perfect, there’s a major question of what could be used to replace it and how it could be implemented with fairness and the public’s safety in mind. Even the bail industry fighting for its survival and law enforcement groups have argued the existing system should be reformed.

One element that can’t be ignored in the fight for bail reform is the scrutiny of the bail schedules and what caps can be put on bail to make it more affordable for people with limited financial means.

At the same time, the issue of public safety has to be taken into account. That will likely involve a bill or proposition with some of the elements written into Prop 25 and SB 10, which created different tiers of risk level for a defendant based on the offense.

“I think it’s good whatever we come up with ultimately is going to involve public safety in some way,” Myslin said. “And we have to acknowledge public safety.”

As for whether or not legislators like Sen. Hertzberg could try to put bail reform on the ballot again, there’s a good chance we could see them come back with another attempt that tries to solve the issues that plagued Prop 25.

“I fully expect that they’re going to try to come up with something in the legislature,” Myslin said. “I don’t think they feel that this is over.”

Humphrey’s Impact on California Bail


It’s been two years since a landmark bail opinion was issued by the First Appellate District in Humphrey’s case, holding that in cases where a defendant is indigent or unable to post bail, a court must consider that defendant’s ability to pay as well as less restrictive alternatives to money bail.

The opinion recognized that unaffordable bail amounts are leading to unequal consequences, disparately impacting the poor. In August, the Supreme Court also granted precedential effect to Part Three of the appellate court’s decision is now binding, which the high court had initially blocked from going into effect while the case was under review. In other words, if you have a case with this issue you have to follow that case.

“Technically I think it’s probably only binding in the first Appellate District,” Myslin said. “Because another appellate district could come along and say, ‘Hey we disagree with the way the First District did this.’” Myslin says other districts could have their own version of what they think bail should be or how bail should be set.

As of now, the California Supreme Court holds all the cards when it comes to finding a solution. Justices have shown they are open to arguments against cash bail. In 2018, Chief Justice Tani Cantil-Sakauye worked with Gov. Jerry Brown and the Legislature to create SB 10, calling money bail “outdated, unsafe, and unfair” after it passed.

The Supreme Court’s endorsement on the Part Three decision in the Humphrey case is a big step forward for bail reform advocates, who view this as a precursor to how they will eventually rule in this case. “My suspicion is their willingness to endorse it means whatever opinion they come up with, they’re probably going to include a lot of that language, like I feel like that’s where this is all headed.” Myslin said.

Since Humphrey was released two years ago, Myslin’s kept in touch with him, checking in via phone every so often to see how he’s doing. Though he’s been released with conditions and is being monitored all the time, he’s been abiding by his terms and feels fortunate to be a free man.

“I think he absolutely appreciates how important [his] compliance is,” Myslin said. “He was given this chance to understand the weightiness of his situation. I’ve told him before, “Hey, you’re gonna be famous, man, this is a big deal.”

Myslin says he’s already seen Humphrey cited in 51 cases so far. As the fight to reform cash bail rages on without the help of Prop 25, the promise of change feels closer than it did two years ago.

“There’s kind of a lot of people who care about this issue and want to be part of the solution because I think you know it’s been pretty clear that the cash bail system is very unfair to people,” Myslin said. “It’s always been very lopsided, and that needs to change.”

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