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Inside California's Modern Day Bail Hearing

In May a San Francisco judge ordered the release of Mr. Kenneth Humphrey, a retired shipyard worker whose case resulted in the landmark “Humphrey decision” that would forever change how bail works in California. The appellate court ruling, brought on by Civil Rights Corps and the San Francisco Public Defender’s Office, cemented into law that people cannot be detained because they can’t afford bail and that judges must consider non-monetary options of release. The courtroom was packed with journalists, community organizers, and lawyers, anxious to see how the judge would rule for a man whose detention was emblematic of California’s past broken bail system, and whose release represented a marked historic shift towards freedom.

Sitting in the back of the court, among other community members who drove from San Jose that morning to bear witness to the hearing, was a family who had a particular interest in supporting Mr. Humphrey. They took time off of work and drove up to see the man whom through fighting for his own liberty, gave their son and brother, locked up in a Santa Clara County jail pretrial, a chance at freedom. They embraced each other when Mr. Humphrey was ordered released, with gratitude of what he went through, and with visions that one day soon they may see a similar result in their loved one’s case.

Mr. Kenneth Humphrey, whose case changed California's bail system. (Photos by Charisse Domingo)

For months prior to their San Francisco trip, they had been attending weekly participatory defense meetings at Silicon Valley De-Bug — a space where families whose loved ones are facing charges meet to support one another and collectively strategize how they can assist defense attorneys to impact the outcomes of cases of their loved ones. This family’s loved one had been locked up pretrial since December 2017, held on “no bail” for felony charges — meaning the judge declared him ineligible of being released, regardless of money. Every week at the meeting, the family spoke of his innocence, and anticipated supporting the attorney and packing the courtroom at his trial. But in Santa Clara County, people are held pretrial for years. A number of families who attend participatory defense meetings have seen loved ones wait over four years for trial. 

So the pretrial detention of this family’s loved one could be equivalent to a lengthy sentence — regardless of what may or may not happen at trial. And that is, if the case makes it to trial. Due to the coercive pressure of pretrial detention, 98% of cases are resolved through plea deal in California according to the Judicial Council.

But in late January with the announcement of Mr. Humphrey’s historic appellate court ruling, this family was filled with a new sense of hope that he may be able to be home — working, taking care of his family, and assisting his attorney to challenge the allegations.

Family and community supporters leaving court and winning release of loved one.

They immediately reached out to the public defender to see if she was planning on filing a bail motion to get a new hearing based on the Humphrey decision. His attorney said they were developing their motion and arguments. At the participatory defense meetings, the family was explained what the bail hearing would be like, and how the judge would be deliberating on release options while thinking about issues such as “flight risk” and “public safety.” As part of the process of participatory defense, the family made a social biography packet — a binder of letters, certificates, photos, that tell the fuller story of who their loved one is, the community they are a part of, and their future prospects. But given the opportunity of the Humphrey decision, they specifically filled the packet with information that spoke directly to key issues that would be argued at the bail hearing. The binder included letters from family members who stated they would house him and offer transportation to court, pictures of the apartment he’d be living in, a letter from his employer saying his job is waiting for him, certificates from community programs he was participating in, and a letter from De-Bug. The letter from De-Bug described how the community organization was a long-time community stakeholder, was familiar with the court process, and would offer him community programs and support in between court dates — thus taking away excuses for a detention and giving confidence that he would not miss a court date or pick up a new charge. The approach is to challenge the four letter word most used in the court to see people locked up — “risk.” This pretrial release model at De-Bug was successful enough to where the County Board of Supervisors in 2017 voted to scale the model, now called The Community Release Project, as another option beyond money bail or system supervision.

The family submitted the packet to the public defender, who added the documents to her motion which she filed with the court, and they held a meeting at De-Bug. The attorney prepped the family as to what to expect at the upcoming hearing; the family shared other information that may be helpful to challenge the prosecutor’s effort to keep their loved one detained, and De-Bug (who had been observing bail hearings regularly) shared what they had observed in various courtrooms for Humphrey hearings with a similar case profile.

Later that month, just weeks after the family sat in Mr. Humphrey’s court hearing, they attended court for their loved one’s Humphrey Hearing. They filled two full rows of courtroom pews. The prosecutor argued that charges alone were sufficient for detention, but the defender brought forward all of the reasons for release she and the family had prepared. She pointed out the family and De-Bug, who were present in the court. The judge changes the no bail posture to a $5,000 bail, with conditions of the Supervised Own Recognizance Program. And just as they did at Mr. Humphrey’s hearing, the family embraced and teared up, knowing he would be home soon.

He was released later that day, and that week came to De-Bug’s participatory defense meeting. There were hugs and congratulations shared, and then he got to work to see how he and his family can continue to support the attorney beat the charges, and immediately set up an in person meeting. The other families in the room, inspired by seeing him in person, sent emails to the attorneys of their loved ones that night to see when their Humphrey hearings might occur to offer their assistance.

And these same core elements — public defenders, grassroots community organizations, and supporting families and communities — exist across counties across the state, where their collective synergy could animate the power of the Humphrey ruling, and set a model for how to ensure potentially historic litigation really does change history for the people it’s for.

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