Inmate in pivotal bail case still in jail

Nearly three months after a landmark legal ruling upended the state’s cash bail system, the San Francisco robbery suspect at the center of the case remains in jail, his bail still set at $350,000, an amount the appeals court ruled was excessive and unfair.

But as Kenneth Humphrey’s attorneys are seeking to have their client released, prosecutors are fighting to keep him locked up until he can be tried.

Humphrey appeared briefly in San Francisco Superior Court for a bail hearing Friday, but a decision over the issue was postponed to allow the judge time to review the attorneys’ positions.

In the background is the ruling in January by the First District Court of Appeal in San Francisco that cast doubt on the constitutionality of the bail system in California and ordered a new bail hearing for Humphrey. The court found that bail set so high that suspects can’t raise enough to be freed is unjustified except for those who are too dangerous to be released before trial.

The ruling has left prosecutors and defense attorneys

sparring not only over Humphrey’s immediate fate, but also over when and how authorities can justify keeping what they consider dangerous people off the streets as they await trial.

Humphrey, 64, who has a history of criminal arrests, has been in jail for 326 days as of Saturday since his latest arrest.

The retired shipbuilder with a history of drug addiction was taken into custody in May 2017, for allegedly following a 79year-old neighbor into an elevator and his apartment, where he threatened to put a pillowcase over the victim’s head and demanded money before stealing the victim’s last $5 and a bottle of cologne. Charges include robbery, elder abuse and burglary — felony offenses involving violence.

Prompted by the appellate ruling, prosecutors are now requesting Humphrey be denied bail, saying there would be a “substantial likelihood” his release would cause “great bodily harm to others.” It is a high legal standard that requires prosecutors to prove the details of the current allegations and that the crimes, coupled with his prior criminal record, warrant denial of bail, something that has been historically used only for the most serious offenses such as murder. “That (the) Defendant would attack a particularly vulnerable victim during daylight in the sanctity of his own home shows that (the) Defendant acts so without regard for the laws and norms of society that there would be substantial likelihood that his release would result in great bodily harm,” San Francisco prosecutors wrote in the motion Superior Court Judge Brendan Conroy is considering. “Defendant’s prior record and pattern of behavior makes this even more certain.”

Humphrey’s prior record, dating to 1980, includes several convictions for robbery, burglary and other offenses over a 25-year period. His last previous offense was in 2005.

The San Francisco public defender’s office is requesting a reduced bail or his release.

“We are extremely troubled, to say the least, that the D.A.’s

office says publicly that it supports bail reform, yet continues to oppose it for Mr. Humphrey, a senior citizen who hadn’t been in trouble for a decade before his arrest, and who has a treatment program holding a spot for him the moment he is released,” said public defender spokeswoman Tamara Aparton.

Humphrey’s case sits at the center of a statewide bail reform movement that has included legislative efforts as well as court cases aimed at replacing cash bail with pretrial monitoring or other safety measures.

The Humphrey ruling achieves, at least in part, what some of those legislative efforts are seeking by requiring trial judges to determine how much bail suspects can afford and whether they can be safely freed without bail. In order to set a higher bail under the ruling, judges must find by “clear and convincing evidence” that it is the only way to protect the public or to assure a return to court after release.

San Francisco District Attorney George Gascón, who has favored bail reform in general, has asked the California Supreme Court to review the appeals court ruling, saying it restricts bail determinations to a financial decision that excludes a consideration of public safety.

Meanwhile, Humphey continues to remain behind bars without having had a valid bail hearing. “Everybody in this case has agreed that Mr. Humphrey never received a constitutional bail hearing,” said Deputy Public Defender Chesa Boudin.

Yet the appeals court ruling on Humphrey’s case has had a significant impact on bail hearings up and down the state, with “countless” individuals benefiting from new hearings and bail set at a reasonable level based on ability to pay, Boudin added.

For decades, it has been common practice for judges to set bail to a fixed amount based on charges and prior criminal record. That system resulted in the poor remaining in jail while wealthier suspects charged with the same crime were freed, critics of the cash-bail system said.

But it’s a balancing act, said Gascón spokesman Max Szabo.

“The D.A. is working to replace an inherently unfair cashbail system with one that makes custody decisions based on risk, not money,” Szabo said. “But that means that those who are a flight risk or present a danger to public safety don’t get out.”

The state Supreme Court is expected to decide by the end of May whether to review the Humphrey ruling.

Jill Tucker is a San Francisco Chronicle staff writer. Email: jtucker@sfchronicle.com Twitter: @jilltucker