San Francisco Chronicle

By Quentin L. Kopp

February 24, 2018

The case of Kenneth Humphrey, the man who stole $5 and a bottle of cologne then couldn’t make his $350,000 bail, is by now well known. But for the wrong reasons.

Humphrey’s case, which found its way to a state appeals court in January, is being misused as an example of a broken bail system. It instead reveals the failing of mental health services, substance abuse treatment and speedy trial protections. Not bail.

Humphrey is a 63-year-old man with a history of criminal behavior, mental illness and drug addiction — with the last two likely responsible for the first. He had four prior “strike” offenses from several years ago, three for robbery and one for attempted robbery. Under California’s “three strikes” law, Humphrey was facing about 40 years to life, which is a strong incentive not to appear for court. Humphrey has relapsed after completing two drug treatment programs since release from the San Francisco jail in 2008.

In his most recent offense, Humphrey invaded the home of a vulnerable, 79-year-old neighbor and demanded money, threatening to put a pillowcase over his victim’s head. He left with just $5 and a bottle of cologne — but not before kicking the victim’s walker into another room, leaving him unable to move about. Humphrey was charged with robbery and residential burglary. At the discretion of the judge, bail was set at $350,000, based on the severity of the crime, his prior criminal history and his potential danger to the community — not the amount of property stolen, as sensational headlines proclaimed.

Because he couldn’t make bail, Humphrey was confined pending trial.

Bail opponents claim the bail system forced Humphrey to sit in jail for more than 250 days. That’s not true. Like mental health and substance abuse programs, the courts also suffer from a lack of adequate resources, forcing delays by overloading court calendars. Certainly, it’s true that cases such as Humphrey’s should not wait eight months, but in this case, he waived his right to a speedy trial within 30 days of his first court appearance.

Regardless, bail opponents say his case underscores the need for reform. But the reforms they’re proposing (i.e., SB10) wouldn’t have kept him out of jail, because even a much-touted pretrial risk assessment tool advocated by bail opponents recommended his detention.

Clearly, the court system can be improved, but correctly diagnosing the problem is essential to finding the right solution. In this case, it’s a lack of resources, not bail, that’s slowing justice and needed services.

If we fail to address the real problem, then we run the risk of replacing our bail system with one in which computer algorithms decide the fate of defendants and public safety. No longer would judges be allowed to make decisions based on the specific facts and nuances of each case. By tying judges’ hands, and forcing the wrong solution on the system, drug-addicted and mentally ill defendants could find themselves sitting in jail for a very long time, without programs needed for recovery. And the system’s real problems would still remain.

Quentin L. Kopp is a retired San Mateo County Superior Court judge and a former state senator and member of the San Francisco Board of Supervisors. He has been a member of the State Bar of California since 1954.