California cash bail system takes another hit

It took the California Supreme Court two major opinions--delivered in 2021 and last week--to overhaul the state's cash bail system so that poor people accused of low-level crimes aren't locked away pretrial solely because they're broke.

The final installment April 30 came in the form of a command by Chief Justice Patricia Guerrero, backed by her colleagues: fix the system now.

Her opinion harmonized state constitutional references regarding the right to bail with exceptions for violent felonies. She concluded that for noncapital defendants, "bail must be set in an amount reasonably attainable for the defendant."

The reasons are simple, Guerrero explained. Equal protection and due process principles prohibit the detention of criminal defendants based solely on their indigency. That will mean more work for the system, because there will have to be an individualized assessment of the accused person's circumstances to craft the conditions of pretrial release. In re: Kowalczyk, S277910 (Ca. S. Ct., op. filed April 30, 2026).

Two justices reinforced Guerrero's main opinion with concurrences. Justice Joshua P. Groban pointed to the many ways available short of detention to protect public and crime victim safety. He also emphasized the many ways in which pretrial detention causes harm.

Justice John Shepard Wiley Jr. of the 2d District Court of Appeal, sitting by designation, added that the wide-ranging nature of statewide bail reform will need buy-in from the legislative and executive branches to pay for it and make it work.

Kowalczyk was a hard no to the persistent use of unaffordable bail as a way to lock away the poor. It's often a ruse, "a sub-rosa means of preventative detention," the "functional equivalent of a pretrial detention order" that is at odds with the state Constitution's right to bail, Groban wrote.

The opinion buttressed and strengthened the court's 2021 declaration that the widespread practice of detaining criminal defendants based solely on their financial condition violated state and federal constitutional principles. In re Humphrey, 11 Cal. 5th 135.

Both involved indigent defendants locked up for months. Gerald John Kowalczyk allegedly stole a $7 cheeseburger and, homeless, could not afford $75,000 bail. Kenneth Humphrey, who allegedly forced his way into a neighbor's apartment and stole $7 and some cologne, stayed behind bars because he couldn't make bail set at $600,000.

Robert I. Weisberg, the co-faculty director of the Stanford Criminal Justice Center, called the opinions a strong corrective to longstanding practices. "The court is trying to pull away prosecutors from trying to set high bail when they would rather not release misdemeanants because they think they are fugitive threats," he said.

"The court holds that is simply not good enough unless there is a threat to public safety."

Weisberg added that Wiley's call for a legislative solution was also significant. "Bail in California has too many moving parts now," he said. "That's because it's California: These opinions invoke federal equal protection issues that come on top of previous statutes that were overruled by ballot initiatives. Every county has its own bail schedules. It's a mess, and Justice Wiley is right to suggest that a comprehensive overhaul by lawmakers is overdue."

After the Kowalczyk ruling was published last week, prosecutors appeared reluctant even as they conceded that the opinion affirms defendants' right to bail. "That said, it did not hold that there is an absolute right to affordable bail," Assistant District Attorney Rebecca Baum of San Mateo County emailed. "Instead, the Court held that a defendant's individual circumstances, including their financial situation, must be considered by the court in setting bail, along with all other purposes of bail."

Added Baum, whose office prosecuted Kowalczyk, "This opinion does not represent a setback in that it still leaves with prosecutors the ability to argue for appropriate bail depending on the circumstances."

It took two opinions from the high court, the second more emphatic, because the first ruling, Humphrey, drew near-statewide resistance. Prosecutors and judges and even appellate justices simply did not acknowledge that the state Supreme Court meant what it said.

Humphrey led to conflicting appellate opinions. A 1st District Court of Appeal panel, considering the Kowalczyk case in 2022, held that bail did not have to be affordable. In re: Kowalczyk, A162977 (1st DCA, op. filed Nov. 22, 2022).

That appeared to give some judges permission to continue locking away the indigent--as long as they found a reason to end-around Humphrey.

In one case last year in San Mateo County, a man who missed court dates on a gun charge asked to have bail set at $500 and promised to appear. The judge said no, adding, according to court papers, "So the Kowalski [sic] case holds that we can stay true to the Humphrey admonition not to set bail beyond a defendant's means so long as we're not setting it solely for the purpose of keeping him in custody. ... The Court is going to set bail at an amount that it believes is sufficient to incentivize your client to come to court, knowing full well that the amount I'm going to set--which is $50,000--is beyond his financial means." In re Isais, H053157 (6th DCA, filed April 9, 2025).

In June 2024 the UCLA School of Law Pretrial Justice Clinic surveyed the post-Humphrey landscape. Its report put the conclusion in a headline: "Largely Unchanged: The Limits of In re Humphrey's Impact on Pretrial Incarceration in California."

Meanwhile, defense lawyers filed hundreds of writ petitions asserting that trial courts were violating Humphrey. Finally, the high court agreed that the cash bail system merited further attention. It chose to focus on the lower court's maverick opinion in Kowalczyk.

Change was a long time coming. For decades, criminal defendants without funds to make bail in California have been jailed awaiting trial--with no judicial assessment of their danger to the public and despite the state Constitution's pledge that liberty is the norm and pretrial detention the exception.

Reform attempts met stiff opposition. Prosecutors and judges cited vague public safety reasons for denying bail to the otherwise eligible indigent, maintaining a system that used detention as a cudgel to coerce plea deals, to inhibit detainees from better assisting in their defense and to inadvertently promote recidivism though lost jobs, broken families and social stigma.

Backing them was the bail bond industry, which mounted a strong, effective campaign against Proposition 25 in 2020, a voter referendum that aimed to abolish cash bail altogether in favor of a risk assessment system. The "No" vote won by 56 percent, erasing SB 10, a 2018 law that eliminated bail.

So reformers tried the courts. Chesa Boudin originated the Humphrey case when he was a San Francisco deputy public defender, in partnership with a national criminal justice reform nonprofit called Civil Rights Corps. Boudin was the group's founding board chair.

"Together, we filed dozens of writs challenging the unconstitutional setting of bail as part of an impact litigation strategy," he said last week. "Several of those cases ended up in federal court. One of them ended up being the Humphrey case."

Boudin, who went on to be elected San Francisco's district attorney and then to be recalled by voters over his progressive reform agenda, gave credit to several Civil Rights Corps lawyers for persisting with Humphrey and Kowalczyk, including Katherine C. Hubbard, Alec Karakatsanis, Carson L. White and Salil H. Dudani.

Currently the executive director of the Criminal Law & Justice Center at UC Berkeley School of Law, Boudin said the Supreme Court's interpretation of the state Constitution's bail provisions in Article 1, Section 12 will change the way the criminal justice system does business.

"By holding that Section 12 controls the denial of bail, and that courts cannot use unattainable bail as a back-door detention order, the court closes a loophole that has resulted in the unconstitutional pretrial detention of tens of thousands of Californians charged with offenses that don't qualify for detention under our Constitution," Boudin emailed last week.

"The practical implications are immediate: every arraignment court in the state must now conduct genuine individualized assessments, state findings on the record, and set bail at amounts that are actually attainable."

He noted that there is no conflict with public safety concerns. "Consistent with Section 12, courts are free to detain individuals accused of felonies involving violence, threats or sexual assault based on the danger they would pose if released. But they can no longer jail defendants based on their poverty. For indigent defendants, this decision is transformative."

Another authority on criminology cheered the Supreme Court's effort. "It's a potentially huge advancement for criminal justice reform," said Jonathan Simon, a professor of criminal justice law at the Center for the Study of Law & Society at UC Berkeley School of Law.

"Unless it faces maximum resistance from trial judges (who retain broad discretion to actually set bail or alternative release conditions), it should mean a substantial portion of those currently in pre-trial detention for a bail eligible offense will be released. That alone will have positive effects because research shows that even a few days in jail disrupts peoples' lives severely enough that their odds of being arrested again in the future go up significantly."

Carson White, the Civil Rights Corps lawyer who argued Kowalczyk at the Court of Appeal, said the Supreme Court found the correct balance favoring personal liberty interests: "This is an historic righting of a very longstanding wrong."

Editor's Note: For readers unfamiliar with the court's internal jargon, the "doghouse" is a longtime, tongue-in-cheek term used by Supreme Court staff to describe the file binder used to transmit Court of Appeal records to the high court. The number of "doghouses" received--reflected on the docket--offers a rough gauge of the size of a case record.