California has not eliminated cash bail. Courts can still require monetary bail in criminal cases, but judges generally cannot keep someone in jail before trial solely because that person cannot afford the amount imposed. California courts must consider ability to pay, public and victim safety, and whether less restrictive conditions can reasonably protect the public and ensure the defendant returns to court.
California’s bail system has changed significantly in recent years.
One of the most important developments came from the California Supreme Court’s decision in In re Humphrey, which established important constitutional limits on the use of money bail.
The decision did not eliminate bail.
Instead, it changed how courts must approach pretrial release when a financial condition would effectively keep someone incarcerated simply because that person cannot afford to pay it.
Does California Still Have Cash Bail?
Yes.
California still permits courts to impose monetary bail, and counties continue to maintain bail schedules.
However, a bail schedule cannot be treated as the final answer when the amount would result in a defendant remaining incarcerated solely because the defendant cannot afford to post it.
When determining pretrial release, courts must consider the individual circumstances of the defendant and the case.
What Did In re Humphrey Change?
In In re Humphrey, the California Supreme Court held that conditioning pretrial freedom solely on whether an arrested person can afford bail is unconstitutional.
The court explained that before imposing a financial condition that a defendant cannot afford, courts generally must consider:
- The defendant’s ability to pay
- Whether nonfinancial conditions could reasonably protect public and victim safety
- Whether nonfinancial conditions could reasonably assure the defendant’s appearance in court
- The defendant’s individual circumstances
The fundamental issue is whether conditions less restrictive than detention can reasonably address the risks presented by the case.
What Is a California Bail Schedule?
California counties maintain bail schedules that identify standard bail amounts for various criminal offenses.
A bail schedule can play an important role shortly after an arrest, including before a defendant has appeared before a judge.
But the scheduled amount is not necessarily the amount a judge must ultimately impose.
Once the court makes an individualized bail determination, constitutional requirements governing pretrial release must be considered.
Does a Judge Have to Consider Whether You Can Afford Bail?
Generally, yes, when imposing monetary bail that would otherwise result in detention.
The California Supreme Court has made clear that a court cannot avoid the ability-to-pay inquiry simply by relying on the amount contained in a bail schedule.
If monetary bail is appropriate, the court generally must consider whether the defendant can actually afford the amount being imposed.
This does not mean a defendant is automatically entitled to release merely because the scheduled bail is unaffordable.
Public and victim safety remain important considerations.
Can a Judge Release Someone Without Requiring Money Bail?
Yes.
Depending on the case, a court may release a defendant subject to nonfinancial conditions.
Potential conditions can include:
- Regular court appearances
- Pretrial supervision
- Electronic monitoring
- Stay-away or no-contact orders
- Restrictions involving drugs or alcohol
- Treatment or counseling
- Restrictions on travel
- Other conditions reasonably related to public safety or appearance in court
The appropriate conditions depend on the defendant and the allegations.
Can a California Court Hold Someone Without Bail?
In some circumstances, yes.
California’s Constitution permits pretrial detention without bail in specified categories of cases when the required findings are made.
California Supreme Court decisions have also emphasized that detention cannot simply be achieved indirectly by setting monetary bail at an amount the defendant cannot possibly afford.
When detention is legally authorized, the court must follow the constitutional and procedural requirements applicable to pretrial detention.
Can a Judge Set Bail Higher Than Someone Can Afford?
A court cannot use unaffordable bail simply as a substitute for a lawful detention order.
If a financial condition would effectively result in detention, the court must apply the constitutional protections governing pretrial liberty.
That includes considering less restrictive alternatives and the defendant’s financial circumstances.
The analysis is individualized rather than based solely on the amount listed in a county bail schedule.
What Factors Matter at a Bail Hearing?
Depending on the case, a court can consider circumstances involving:
- The seriousness of the alleged offense
- Public safety
- Safety of the alleged victim
- The defendant’s criminal history
- Prior failures to appear
- Community and family ties
- The defendant’s financial circumstances
- Whether nonfinancial conditions could reasonably address identified risks
- Other circumstances relevant to pretrial release
No single factor necessarily determines the outcome in every case.
What Does “Own Recognizance” Release Mean?
Release on one’s own recognizance, commonly called “OR release,” generally means the defendant is released without having to post monetary bail.
The defendant promises to return to court and must comply with any conditions imposed as part of the release.
An OR release is different from dismissal of the criminal case.
The charges remain pending and the defendant must continue appearing in court.
What Is Supervised Pretrial Release?
Some defendants may be released subject to pretrial supervision or other conditions rather than being required to post money bail.
Supervision can involve requirements designed to reduce the risk that the defendant will fail to appear or create a danger while the case is pending.
The specific requirements vary according to the case and the local pretrial-release system.
Does Being Charged With a Serious Crime Automatically Mean No Bail?
Not necessarily.
The seriousness of an offense can be highly relevant to bail and detention, but pretrial detention is governed by California’s Constitution and applicable statutes.
Whether bail can be denied depends on the particular charge, evidence, circumstances, and findings required by law.
A serious allegation should therefore not automatically be treated as synonymous with “no bail.”
Can Bail Be Changed After It Is Initially Set?
Potentially.
The amount shown on a bail schedule or initially imposed following an arrest does not necessarily remain unchanged throughout the case.
A defendant may seek review of bail and request release or different conditions.
The prosecution can also seek changes when legally appropriate.
At a bail hearing, both sides may present information relevant to the court’s release decision.
What Can a Defense Attorney Argue at a Bail Hearing?
Depending on the circumstances, the defense may present information involving:
- Ability to pay
- Employment
- Family responsibilities
- Community ties
- Prior court appearances
- Lack of criminal history
- Treatment or counseling options
- Housing
- Electronic monitoring
- Stay-away or protective conditions
- Other alternatives to detention
The objective can be to demonstrate that reasonable conditions short of detention are sufficient to address the court’s concerns.
Does Paying Bail Mean the Criminal Case Is Over?
No.
Posting bail only allows a defendant to remain out of custody while the criminal case proceeds, subject to the conditions of release.
The defendant must continue appearing in court and complying with any release conditions.
Violating those conditions or failing to appear can result in additional consequences and can affect continued pretrial release.
What Happens to Bail at the End of the Case?
What happens depends in part on how bail was posted.
Cash bail, a bail bond, and other forms of security can operate differently.
A defendant who uses a commercial bail bond generally pays a premium to the bail bond company, and that premium ordinarily is not the same thing as depositing the entire bail amount directly with the court.
The specific financial consequences depend on the method used and what happens during the case.
California Did Not Eliminate Cash Bail
This distinction is important.
California considered major legislative efforts to replace its cash-bail system, but California continues to use monetary bail.
What has changed is the constitutional framework governing how courts may use it.
Under current California Supreme Court precedent, a person’s financial resources cannot be ignored when monetary bail would effectively determine whether that person remains incarcerated before trial.
Courts must instead make an individualized assessment and consider whether less restrictive conditions can reasonably protect public and victim safety and ensure the defendant returns to court.
Talk to a Fresno Criminal Defense Attorney About Bail
What happens immediately after an arrest can significantly affect a criminal case.
Questions involving bail, pretrial detention, release conditions, and the first court appearance can arise before the prosecution has even presented its complete case.
Gregory W. Fox has more than 20 years of experience defending people accused of California criminal offenses.
If you or a family member has been arrested in Fresno or Central California and needs criminal defense representation, visit our Fresno Criminal Defense Attorney page or call the Law Office of Gregory W. Fox at (559) 222-5800 to request a confidential consultation.