In California, cash bail is no longer the default. After In re Humphrey, a court must consider your ability to pay and release you on your own recognizance or on non-financial conditions whenever possible.
The bail question is usually decided at the arraignment — and it is worth fighting.
O.R. Release: No Money Down
Own-recognizance (O.R.) release means you are released on your written promise to appear — no money. For most misdemeanors and many other cases, O.R. or supervised release is the expected outcome, especially with community ties and no serious record.
The Humphrey Rule
Under In re Humphrey (2021) 11 Cal.5th 135, a court cannot set bail in an amount you cannot afford without considering your ability to pay and whether less-restrictive conditions would protect the public and ensure your return. In practice, that means an unaffordable bail requires findings the prosecution often cannot make.
At the Bail Hearing
Bail is typically addressed at the arraignment. A lawyer can argue for O.R. or non-financial conditions, present your ties to the community and employment, and challenge an unaffordable bail request under Humphrey. If bail was already set on a schedule, a lawyer can ask the court to reconsider and reduce it.
Frequently Asked Questions
Can you be released without paying bail in California?
Yes, often. Release on your own recognizance (O.R.) — on your written promise to appear, with no money — is the expected outcome for most misdemeanors and many other cases. After In re Humphrey, courts must also consider your ability to pay before setting cash bail.
What is the Humphrey rule on bail?
Under In re Humphrey (2021), a California court cannot set bail in an amount you cannot afford without first considering your ability to pay and whether less-restrictive conditions would ensure your return and protect the public. It made unaffordable cash bail much harder to impose.
When is bail decided?
Usually at the arraignment, the first court appearance. A defense lawyer can argue there for release on your own recognizance or non-financial conditions, and can later ask the court to reconsider and reduce a bail that was already set.
GuidesComplete Guide to California Misdemeanors · Glossary · Penalties Reference.
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Getting released without paying is often possible — the law is on your side after Humphrey. Tell me the situation and I'll tell you the play.
Schedule Free ConsultationAbout the Author
Ahmed S. Hasan
San Francisco Criminal Defense Attorney · State Bar of California #364992
Ahmed S. Hasan is the founder of ASH Legal, a solo criminal defense practice based in San Francisco. The firm runs on flat-fee representation: one lawyer, one fee, from arraignment through resolution. No hourly billing. No surprise invoices.
Ahmed is a graduate of Emory University School of Law and a member in good standing of the State Bar of California (Bar #364992). His practice focuses on San Francisco misdemeanor defense — DUI, domestic violence, petty theft and shoplifting, drug possession, vandalism, trespassing, and assault and battery — with particular attention to diversion-track outcomes that end in dismissal under PC 1001.95, PC 1001.36 (Mental Health Diversion), PC 1001.80 (Military Diversion), and PC 1001.83 (Parental Caregiver Diversion).
Ahmed previously served as a post-bar clerk with the San Francisco Public Defender's Office, the city's largest indigent-defense practice. He is a member of the Asian Pacific American Bar Association of Silicon Valley.
He represents clients at the San Francisco Hall of Justice (850 Bryant Street) and the Civic Center Courthouse. The ASH Legal office is at 15 Boardman Place, Suite 301, San Francisco, CA 94103.
Free 30-minute consultations are available by phone or Zoom. (510) 545-6515 · ahmed@ashlegal.com