By Jeff Adachi and Chesa Boudin
The case of a San Francisco senior citizen accused of stealing $5 and a bottle of cologne from his neighbor reveals the obvious injustice of California’s bail system, and may finally lead to reform.
Kenneth Humphrey has languished in San Francisco County Jail for more than 250 days on $350,000 bail. His charges include robbery and residential burglary for allegedly stepping into his neighbor’s room in their senior housing complex.
But in late January, a panel of state appeal court judges ordered a new bail hearing for the retired shipyard laborer. The panel also stated that the laws governing bail are the “antithesis” of what the Constitution requires before a person may be deprived of liberty.
“A defendant may not be imprisoned solely due to poverty,” the court said, a revolutionary decision, if it’s upheld.
San Francisco is ground zero for the state’s battle over bail. Since October, the city’s public defenders have challenged bail amounts in virtually every criminal case, demanding that judges hold 
hearings to consider alternatives to incarceration and inquiries into their clients’ financial circumstances.
They have found a sympathetic audience in the state’s appellate court judges, who have ruled that only an immediate threat to the public justifies setting unreachable bail amounts.
Prosecutors and judges at the local level, however, continue to undermine these appellate decisions by exaggerating perceived public safety risk.
Humphrey’s case is extreme in the sense that a $5 crime led to a several hundred thousand dollar bail, and even the district attorney concedes he poses no threat to society. But every day in every county criminal courthouse in California, prosecutors request sky-high bail amounts from judges who are happy to impose them. That makes a mockery of the presumption of innocence and equality before the law, as poor people accused of minor offenses wait in jail while wealthy people go free despite the seriousness of their charges.
Money bail as it’s currently constituted punishes poverty, and too often results in coerced guilty pleas from those who can’t get out of jail any other way.
How did we get here?
Humphrey’s incarceration is not an aberration or an accident; “it stems instead from the unwillingness of our society, including the courts,” the San Francisco panel wrote, “to correct a deformity in our criminal justice system that close observers have long considered a blight.”
That “blight” persists in part because of the for-profit bail industry and its powerful lobby. The published opinion includes a devastating critique of arbitrary bail schedules, casts doubts on the increased reliance on “opaque” algorithmic risk assessment tools, articulates the staggering costs of pretrial incarceration, and holds that the government must present “clear and convincing” evidence of immitigable risk in order to detain someone before trial.
In Humphrey’s case, as in so many, “the prosecutor presented no evidence that non-monetary conditions of release could not sufficiently protect” public interests.
The law, rooted in precedent, is often slow to correct itself. And while the appellate court decision put a crack in the foundation of the bail system, it’s up to the legislature to come up with something new.
“Legislation is desperately needed,” the appeal panel wrote.
As it happens, legislation is at hand: Senate Bill 10, which would effectively outlaw money bail, passed the state Senate and is now being held in committee in the Assembly. It just needs a handful more votes and the governor’s agreement to become law.
Humphrey is one of many people behind bars simply because he’s poor, but he could be among the last.
Jeff Adachi is the San Francisco Public Defender. Chesa Boudin is a Deputy Public Defender in San Francisco and on the board of the Civil Rights Corps, which challenges money bail across the country.
Several times I’ve publicly spoken against the continuance of the Medieval-age bail system being relevant to contemporary society. It needs to be abolished, and the sooner the better. This advocacy column hinders more than helps a shared judicial reform sentiment.
This column fails on numerous points to achieve it’s intent–the credibility and persuasiveness of the Humphrey case suffers beginning immediately with the title. It’s a tease and deliberately deceptive.
A five-dollar theft is a low grade misdemeanor. With no priors (never mentioned in the story) the defendant would have been released from custody on a Notice to Appear, assuming custody was ever even considered in a five-dollar theft. In a high-activity city like San Francisco, you’d be very fortunate to have a police officer even respond to such a low grade crime. And a physical arrest is far less likely.
The story continues, and then mentions that Humphrey was also charged with burglary (felony) and also with robbery (bigger felony). So it wasn’t a petty theft, it was a two-count felony. There’s more to this part of the story.
Humphrey is destitute, he’s in custody and he’s arraigned the next judicial day. In situations like this a destitute defendant is represented by a public defender (the author’s employee) which always includes a request for bail reduction or waiver. There’s more to this part of the story.
San Francisco is a very liberal community, the judiciary reflects that sentiment. San Francisco Superior Court judges set the bail schedule. Bail set at $350,000 is extraordinary high, in any jurisdiction. There has to be much more to this story of why such a high bail, and why the defendant has been in pre-trial custody for the better part of a year.
In one sentence the authors said that “Humphrey’s case was extreme,” and it surely is. But a few sentences later, were told “Humphrey’s incarceration is not an aberration.” If it’s not, show us even one more, just one.
Good call Phil, with a Google search I found:
http://sanfrancisco.cbslocal.com/2017/09/22/san-francisco-senior-petty-crime-bail/
Funny, but I don’t recall reading that in this article.
They’ve also overcharged the case as burglary and robbery which no doubt jacked up the bail.
But why doesn’t the article state that he already has two felony convictions with this possibly being his third? Why do Vanguard readers have to dig to get the whole picture?
Because it’s an op-ed written by an outside contributor?
Don’t steal and then you won’t have to worry about bail.
Yep… particularly when entering a neighbor’s house… first blush was shoplifting… home entry is something completely different…
Yes Jeff and I would add don’t steal when you already have two felonies on your record.
Okay, aside from the legal standard that someone accused of a crime is not guilty of that crime until due process is following there is also the fact that from a cost perspective, it doesn’t make a lot of sense to incarcerate people who have committed relatively minor crimes. And from a safety perspective, the issue of money bail doesn’t make a lot of sense either. If you are a threat to society, you are a threat to society whether or not you can come up with $35000. So I don’t really understand your point.
Tell that to the thousands of people acquitted of crimes each year and the thousands who have served years in prison for the crimes they don’t commit. We have a standard of innocent until proven guilty, and money bail turns that on its head with huge consequences for people who are simply accused of crimes.