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Researchers find little change in pretrial incarceration rates following Supreme Court ban

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In re Humphrey, the Supreme Court case addressing unaffordable cash bail, has significant impacts on local courts such as Alameda County courts, where pretrial release comes with increased release conditions.


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OCTOBER 27, 2022

The Supreme Court case “In re Humphrey” was implemented to end unaffordable cash bail; however, a study conducted by UC Berkeley and UCLA law researchers found there has been little evidence of change.

The Supreme Court decided in March 2021 that detaining someone before their trial solely because they cannot pay bail violates the due process and equal protection clauses of the Constitution. A year later, researchers found that significant change still needs to be made in the pretrial detention system.

“Our first set of findings is about the statewide impact of the Humphrey decision on a few key metrics of the pretrial detention landscape,” said Rachel Wallace, co-author of the report and clinical supervisor of the Policy Advocacy Clinic at Berkeley Law, in an email. “We found that there is no evidence that Humphrey has resulted in decrease of the pretrial jail population in California, median bail amounts in California and the average length of pretrial detention in California.”

Wallace said the research was prompted by Proposition 25, which was placed on the ballot in 2020 as a referendum on Senate Bill 10. The proposition, which did not pass, was intended to eliminate cash bail in California, replacing it with an increased use of risk assessment tools.

Humphrey, Wallace added, has had an impact on local courts, specifically in Alameda County.

“82% of Alameda County respondents said that when Humphrey arguments are made in court, the prosecutors object to release on own recognizance (release without bail or conditions) 75-100% of the time,” Wallace said in the email. “About half said that judges are releasing people pretrial more frequently than they were before the Humphrey decision, but 90% said that this comes with increased pretrial release conditions.”

While it was thought that the Humphrey decision would relieve some racial and socioeconomic disparities present in the pretrial system, the researchers concluded that the reach of the pretrial system has instead expanded following Humphrey, according to a Berkeley Law and UCLA Law joint press release.

Wallace noted that bail advocates have long worked toward reforming the system of pretrial detention. In many cases, advocates are working to eliminate the practice of setting cash bail altogether, Wallace said.

Wallace added that much more must be done in order to effectively put an end to pretrial detention and cash bail.

“Our conclusions point to the reality that it will take more than the Humphrey decision alone to address the issue of wealth-based pretrial incarceration in California,” Wallace said.

Contact Emewodesh Eshete at 


OCTOBER 28, 2022