What Is Excessive Bail? California Law & How to Fight It

When a bail amount lands and it’s far more than a family could ever pay, the first question is usually the same: Can they really do that? The Constitution says bail can’t be “excessive” — but it doesn’t say what that means in dollars. This guide explains what excessive bail actually is, how California judges are supposed to set bail, what changed after the In re Humphrey decision, and the practical steps for getting a high bail reduced.

What “excessive bail” means

The Eighth Amendment to the U.S. Constitution reads, in part, that “excessive bail shall not be required.” The purpose of bail is narrow: it exists to make sure a defendant returns for their court dates — and, in California, to protect the public and victims. It is not meant to be a punishment before trial, and it is not supposed to keep someone locked up just because they’re poor.

The U.S. Supreme Court put it plainly in Stack v. Boyle (1951): bail set higher than an amount “reasonably calculated” to ensure the defendant’s appearance is “excessive under the Eighth Amendment.” In other words, if the number is bigger than what’s actually needed to bring the person back to court and keep the community safe, it crosses the line.

The catch is that “reasonable” is judged case by case. There’s no fixed ceiling. A $50,000 bail might be perfectly appropriate for one charge and clearly excessive for another. That’s why understanding the factors behind the number matters more than the number itself.

How California judges are supposed to set bail

California law gives judges a framework. Under Penal Code § 1275, when a court sets, reduces, or denies bail it must consider:

Every California county also publishes an annual bail schedule — a chart of standard bail amounts by charge that law enforcement uses at the moment of booking, before anyone sees a judge. Kern County is no exception. The schedule is a starting point, not the final word: a judge can raise it, lower it, or set other conditions once the case reaches court.

What In re Humphrey changed

The most important recent development in California bail is the state Supreme Court’s 2021 decision in In re Humphrey (2021) 11 Cal.5th 135. It reshaped how ability to pay fits into the bail question.

Under Humphrey, a California court:

• Must consider the defendant’s ability to pay. Detaining someone solely because they can’t afford the bail amount can violate due process and equal protection.
• Must consider less restrictive alternatives to cash bail — release on one’s own recognizance, supervised release, electronic monitoring, protective orders, or treatment programs — before relying on money.
• Cannot use an unaffordable bail as a back-door way to detain someone. If the prosecution wants a person held before trial, it must justify that at a hearing with clear and convincing evidence that no less restrictive condition would protect the public and ensure the person’s return.

Is your loved one’s bail excessive? What you can do

If a bail amount seems far out of proportion to the charge, or is simply impossible for the family to meet, there are real options:

1. Raise it at the arraignment. The first court appearance is a natural point to address bail. A defense attorney can argue for a lower amount or non-monetary release right there.
2. File a motion to reduce bail. A defense lawyer can formally ask the court to lower bail, presenting evidence about the person’s finances, ties to the community, and lack of flight risk.
3. Request a Humphrey hearing. This is the hearing where the judge specifically reviews ability to pay and less restrictive alternatives, and must state reasons on the record.
4. Post the current bail now, argue later. You don’t have to leave someone in custody while these motions play out. A bail agent can post the existing amount immediately so your loved one is released, and the attorney can still pursue a reduction.

That last point matters. Fighting an excessive bail amount in court and getting someone out of jail are not either-or. Often the fastest, least stressful path is to post a bond right away and let the defense attorney address the amount from a position of freedom rather than a cell.

How a bail bond helps when bail is high

A bail bond exists precisely for the situation where the full bail amount is out of reach. Instead of paying the entire bail to the court in cash, you pay a licensed bail agent a premium set by California law at 10% of the full bail amount, and the agent posts the full bond on your behalf. On a $50,000 bail, that’s a $5,000 premium — and we offer payment plans and easy-to-qualify terms to make even that manageable.

You can estimate the cost with our free bail bond calculator, see the process step by step in how to post bail in Bakersfield, and get a sense of typical numbers on our bail amounts by crime guide. Wondering whether you’ll get any of it back? See do you get your bail money back in California.

Excessive bail in Kern County

In Kern County, first bail amounts come from the county’s felony and misdemeanor bail schedules and are addressed by the Superior Court — for in-custody cases, usually at the Metropolitan Division in downtown Bakersfield. If you believe a bail is excessive, the same tools apply: a defense attorney can seek a reduction or a Humphrey hearing, and we can post the current amount immediately so your loved one is home while the case moves forward. Not sure where your loved one is being held? Start with our Kern County inmate locator.

Frequently asked questions

What is the definition of excessive bail?

Excessive bail is bail set higher than reasonably necessary to ensure the defendant returns to court and to protect public safety. The Eighth Amendment prohibits it, and the Supreme Court held in Stack v. Boyle that any amount beyond what’s needed to secure a defendant’s appearance is excessive.

Does the Constitution set a maximum bail amount?

No. The Eighth Amendment bans excessive bail but sets no dollar figure. Whether bail is excessive is decided case by case, based on the charges, the defendant’s record and community ties, flight risk, public safety, and — in California — ability to pay.

What is a Humphrey hearing?

It’s a hearing, named after In re Humphrey, where a California judge reviews a defendant’s ability to pay and considers less restrictive alternatives to cash bail. If the court wants to keep someone in custody, it must justify that with clear and convincing evidence.

Can I get someone out while we’re fighting the bail amount?

Yes. You can post the current bail through a bond immediately — your loved one is released — while a defense attorney separately asks the court to reduce the amount. The two happen in parallel.

How much does a bail bond cost?

The premium is 10% of the full bail amount, set by California law and the same at every licensed bondsman. We offer flexible payment plans and easy-to-qualify terms.