Poster Child for Bail Reform Remains Jailed Despite Appeals Win

SAN FRANCISCO (CN) – A man whose $350,000 bail on a charge of robbing his neighbor of $7 became a rallying cry for the bail system’s critics, will remain in jail for now until the neighbor has a chance to speak in court.

“It’s very disappointing,” said San Francisco Public Defender Jeff Adachi outside the courtroom on Tuesday, criticizing what he believes is a stalling tactic by the district attorney to keep Kenneth Humphrey, 64, in jail. “There is no public safety risk. We see this as a dilatory tactic by the district attorney. They haven’t talked to the complaining witness for a year. It raises questions about the district attorney’s commitment to bail reform.”

Adachi’s office had moved for Humphrey’s release following an appellate court’s finding that a “defendant may not be imprisoned solely due to poverty.” The First Appellate District ruled in January that bail can only be used if there is no other less restrictive way of ensuring a defendant’s future court appearances, and that bail cannot be set without considering a defendant’s ability to pay.

On Tuesday, San Francisco Superior Court Judge Brendan Conroy set another hearing for Thursday to hear from Humphrey’s 79-year-old, disabled neighbor Elmer Johnson. Prosecutors say Humphrey followed Johnson into his apartment at 1239 Turk Street and demanded money.

Johnson told police that Humphrey threatened to put a pillowcase over his head before taking $7 and a bottle of cologne. The $7, Humphrey’s lawyers say, was money that he believes Johnson owed him.

Humphrey’s bail was initially set at $600,000 by San Francisco Superior Court Judge Joseph Quinn, who later lowered it to $350,000 – prompting his lawyers to file a petition for writ of habeas corpus.

The appellate court’s decision was hailed as a landmark by opponents of money bail, who have latched onto Humphrey’s case as emblematic of all that is wrong with a system that allows indigent defendants to languish in prison while rich defendants are free to walk the streets and perhaps commit other crimes.

“Mr. Humphrey has been in custody for almost a year without receiving a bail hearing. He is one of tens of thousands of people across California sitting in jail today simply because they are too poor to purchase their freedom,” said Deputy Public Defender Chesa Boudin. “The irony of this delay tactic is that if Mr. Humphrey had a rich friend he’d be out on the street today with no conditions on his liberty.”

Outside the courtroom, district attorney spokesman Max Szabo said Johnson is still traumatized by the experience but a victim’s advocacy group convinced him to speak. The District Attorney’s Office just learned of this on Tuesday, he said.

Szabo said District Attorney George Gascon supports bail reform, but not at the expense of public safety.

“We want to move away from using money for a proxy for risk. You can be dangerous and pose a significant threat to public safety and be released, you can be poor and pose no risk to public safety and you can be kept in custody. We don’t think that’s a just system or a system we want to be a part of, but we want to move to a system that also doesn’t create an unnecessary risk to public safety as well,” Szabo said.

At Tuesday’s hearing, Conroy seemed inclined to grant Humphrey’s request to be released into a residential recovery program called Golden Gate Seniors pending the outcome of his residential robbery case.

“Just because someone is eligible for detention doesn’t mean that the court cannot fashion release conditions,” he said.

But Assistant District Attorney Courtney Burris likened that option to a “fox in the henhouse scenario where residents, unbeknownst to them, are being subject to potential danger.”

Burris recounted Humphrey’s lengthy criminal past. In 1992, he pulled a knife on a woman walking alone and demanded her wallet. In 2005, he was convicted of a robbery where he snuck upon a woman getting into her car, put his hand over her mouth and bashed her head against the dashboard. When confronted by witnesses, Humphrey threatened he had a gun. Humphrey was also convicted for robberies in 1980 and 1985.

Burris noted that each time Humphrey committed a new crime, he had been out on parole for a prior one.

His attorney, Deputy Public Defender Anita Nabha, argued Humphrey’s age and connection to the community minimizes his risk to others – as does the length of time between his most recent arrest and his last jail sentence.

“He was sentenced in 2005 and released in 2007, and he had no police contact for the next 11 years until now,” she said. “The suggestion that he has not been able to be successful while on parole is just not true.”

Nabha said Humphrey could stay out of trouble with the help of the residential recovery program and an electronic monitor. But Burris said it’s only a matter of time before Humphrey, whom she called a “serial robber,” might offend again.

Michael Taylor, program director with Golden Gate Seniors, told Conroy he has no compunction about accepting Humphrey into the program.

“Are you worried he might victimize your residents?” Conroy asked.

“I interviewed him three times myself,” Taylor said. “In reality, we’ve had worse in our program and have had nothing but success.”

Boudin said he expects Humphrey will be released on Thursday, “If Mr. Humphrey is granted a fair bail hearing.”

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