The California Money Bail Reform Act, formally Senate Bill 10, is not in effect. Governor Newsom signed it in 2018, the bail bond industry forced a referendum, and in November 2020 voters rejected Proposition 25, killing the law before it could take effect. Cash bail still exists in California. What governs pretrial release today is a 2021 California Supreme Court decision, In re Humphrey, which held that it is unconstitutional to keep someone in jail before trial just because they cannot afford the bail amount a judge set.
What SB 10 Would Have Done and Why It Failed
SB 10 would have made California the first state to abolish money bail entirely.1California Legislative Information. California Senate Bill 10 – Pretrial Release or Detention: Pretrial Services In its place, every arrested person would have received a risk assessment from a local pretrial services agency. Low-risk defendants would have been released automatically, medium-risk defendants handled under local court rules, and high-risk defendants or those charged with certain serious offenses held pending a hearing.2Judicial Council of California. SB 10 General Overview
The bail bond industry gathered signatures almost immediately, suspending the law and putting it on the November 2020 ballot as Proposition 25. A “yes” vote would have upheld SB 10; a “no” vote would have repealed it. Voters chose no, by a decisive margin. The statewide system SB 10 envisioned, including mandatory risk assessments and the end of cash bail, never arrived. Later legislative attempts to codify similar reforms, including a bill directing the Judicial Council to adopt a statewide zero-bail schedule, have stalled.
The Ruling That Changed the System Instead
With SB 10 dead, the most consequential change came from the courts. In March 2021, the California Supreme Court decided In re Humphrey.3Justia Law. In re Humphrey Kenneth Humphrey, a retired shipyard worker, had been arrested for robbery. A San Francisco judge set his bail at $600,000 using the county’s standard bail schedule. He could not pay. He sat in jail for months.
The court held that “the common practice of conditioning freedom solely on whether an arrestee can afford bail is unconstitutional.” Liberty before trial is the norm. Detention is the exception, and it can only be justified when the prosecution shows by clear and convincing evidence that no condition of release can reasonably protect the public, protect a specific victim, or ensure the defendant returns to court.3Justia Law. In re Humphrey
The decision treats setting an unaffordable bail amount as the functional equivalent of ordering detention. If the real-world result of a bail order is that the defendant stays in jail because they are poor, the court has to justify that outcome under the same high standard it would use to deny release outright. Standardized county bail schedules can no longer carry the decision on their own.
How a Bail Hearing Works Now
Under California Penal Code Section 825, a person who is arrested must be brought before a judge within 48 hours, excluding Sundays and court holidays. At that first appearance the judge addresses the charges, informs you of your rights, and sets the conditions of pretrial release. If you cannot afford a lawyer, one is appointed for free.
After Humphrey, the judge has to work through a specific sequence. The first question is whether non-monetary conditions of release are enough. Those can include electronic monitoring, regular check-ins with a pretrial case manager, stay-away orders protecting a victim, drug or alcohol treatment, or community housing. If some combination of these adequately addresses public safety and the risk of nonappearance, the judge must release you under those conditions rather than set a dollar amount at all.
California Penal Code Section 1275 also directs judges to weigh specific factors: the protection of the public, which the statute calls the “primary consideration,” the seriousness of the offense, the defendant’s criminal record, and the likelihood of appearing in court.4California Legislative Information. California Penal Code 1275 – Bail When evaluating seriousness, the judge must also consider any alleged injury to the victim, threats against a victim or witness, and whether a firearm or controlled substance was involved.
For certain serious or violent felonies, Penal Code Section 1270.1 requires that any bail reduction below the schedule amount, or any own-recognizance release, happen only after a hearing in open court before a judge. The same rule applies to felony charges involving witness intimidation, domestic violence, criminal threats, and stalking.
The Ability-to-Pay Inquiry
If the judge decides that non-monetary conditions are not enough and that a financial condition is necessary, Humphrey adds one more step: the judge has to actually ask what you can afford. Setting a number and moving on is not allowed. The court has to investigate your real financial situation.3Justia Law. In re Humphrey
If you cannot afford the amount the judge is considering, there are only two lawful options: lower the bail to something you can realistically post, or release you under non-monetary conditions. The court cannot acknowledge you are broke and leave a high number in place. That would be detaining someone, in the court’s words, “solely because” they “lacked the resources” to post bail. Whatever monetary bail does get set must be the lowest amount reasonably necessary to serve the state’s interests, tied to your actual finances rather than to the charge.3Justia Law. In re Humphrey
This is the heart of what changed. Before Humphrey, bail schedules pegged amounts to charges, not people. A $50,000 bail for assault meant the same thing whether the defendant earned $200,000 a year or $20,000. The inquiry requirement forces judges to treat bail as a financial condition set for a specific person.
Release Without Bail at All
Plenty of pretrial release does not involve bail. California Penal Code Section 1270 lets anyone charged with a non-capital offense be released on their own recognizance, meaning you sign a written promise to appear and walk out without posting money.5California Legislative Information. California Penal Code 1270
For misdemeanors, own-recognizance release is the default. If you are arraigned on a misdemeanor, you are entitled to be released on your own recognizance unless the court finds on the record that release would compromise public safety or that you are unlikely to appear. Only then does the court move to setting bail and conditions.5California Legislative Information. California Penal Code 1270 For felonies, own-recognizance release is available at the judge’s discretion rather than as a presumptive right, but the Humphrey framework still applies.
The Underlying Right to Bail
The California Constitution establishes a general right to pretrial release. Article I, Section 12 says a person “shall be released on bail by sufficient sureties” and prohibits excessive bail.6Justia Law. California Constitution Article I Section 12 The constitution carves out three categories where bail can be denied entirely: capital crimes when the facts are evident or the presumption of guilt is strong; violent felonies or felony sexual assaults where the evidence is strong and the court finds by clear and convincing evidence that release would create a substantial likelihood of great bodily harm to others; and felonies involving threats of great bodily harm where the evidence is strong and the court finds a substantial likelihood the defendant would carry out the threat. Outside those categories, the court must offer some path to release.
Where This Leaves You
California’s pretrial system is in an unusual posture. The legislature’s attempt to end cash bail failed at the ballot. The court’s mandate in Humphrey reshaped how hearings work, but no statute codifies its requirements. Several counties have adopted their own zero-bail policies for misdemeanors and some non-violent felonies through local court rules, and these vary in scope.
Compliance with Humphrey at the trial court level is uneven. Some judges conduct thorough ability-to-pay inquiries and genuinely consider non-monetary conditions first. Others have been slower to change their habits. If you believe a judge set bail without properly considering your financial circumstances or without exploring non-monetary alternatives, that order can be challenged through a habeas corpus petition. That is the same procedural route Kenneth Humphrey used to get his case to the California Supreme Court.