{"id":18856,"date":"2026-05-27T15:29:47","date_gmt":"2026-05-27T19:29:47","guid":{"rendered":"https:\/\/www.prisonpolicy.org\/blog\/?p=18856"},"modified":"2026-05-27T15:29:47","modified_gmt":"2026-05-27T19:29:47","slug":"kowalczyk-bail","status":"publish","type":"post","link":"https:\/\/www.prisonpolicy.org\/blog\/2026\/05\/27\/kowalczyk-bail\/","title":{"rendered":"The California Supreme Court puts on the record the best arguments against money bail"},"content":{"rendered":"<p>In January 2021, <a href=\"https:\/\/www.themarshallproject.org\/2026\/05\/09\/california-money-bail-reform-decision\">Gerald Kowalczyk<\/a>, a disabled man experiencing homelessness, found a credit card on the ground in San Mateo, California. He attempted to use the credit card to buy a $7 hamburger, then had a change of heart, asked for a refund, and when the manager refused, left without the hamburger. He was arrested shortly afterwards and charged with identity theft and petty theft. California law would generally not have allowed Mr. Kowalczyk to be detained pretrial on such minor, non-violent charges. But the judge, like too many prosecutors and judges, set an astronomical $75,000 bond in the case, stranding Mr. Kowalczyk in jail for six months before he pled guilty.<\/p>\n<p>On April 30, 2026, the California Supreme Court expanded on a previous case, <a href=\"https:\/\/supreme.courts.ca.gov\/sites\/default\/files\/supremecourt\/default\/2022-08\/S247278.pdf\"><i>In re Humphrey<\/i><\/a>, and ruled that Mr. Kowalczyk&#8217;s detention was unconstitutional under the California State Constitution because detaining people using unaffordable cash bails is the exact same thing as detaining them <i>without<\/i> bail, something that can only be done in limited circumstances with rigorous due process protections. Because of this case, unaffordable bail is now never an option in the California courts &#8211; if they use monetary bail, courts <i>must<\/i> set bail at a level that an accused person can pay. <\/p>\n<p class=\"prelist\">The <a href=\"https:\/\/civilrightscorps.org\/wp-content\/uploads\/2026\/04\/S277910.pdf\">opinion and concurrence<\/a> state in no uncertain terms what pretrial reform advocates have been saying for years:<\/p>\n<ul class=\"list\">\n<li>Using money to decide who goes to jail and who goes free is a lawless system that puts the opinions of judges and prosecutors above the will of legislatures and the public.<\/li>\n<li>Money bail privileges the rich and leaves everyone else stranded in jail.<\/li>\n<li>The overuse of pretrial jailing does more harm than good and destabilizes the very communities prosecutors and judges claim to be protecting.<\/li>\n<\/ul>\n<p><i>In re Kowalczyk<\/i> could free tens of thousands of people every year in California, if appropriately implemented. Even though this case can&#8217;t be used as binding precedent in other states because its legal basis is specific to the California State Constitution, the court&#8217;s reasoning gives excellent examples of how to make these important arguments resonate with policymakers.<\/p>\n<h2>When prosecutors and judges use money bail to detain people, they are imposing their own judgements instead of following the law<\/h2>\n<blockquote class=\"torn\">\n<p>&#8220;Courts cannot use artificially high or objectively unattainable bail as an end run to effectuate pretrial detention where such detention is not authorized under [the California Constitution].&#8221; &mdash; Majority opinion, p. 32<\/p>\n<\/blockquote>\n<p>The debate around cash bail centers around a lesson from Civics 101: separation of powers. Legislatures decide what the law <i>is<\/i>. Judges then apply that law to individual cases. The Constitution separates these roles because legislatures are best suited to make policy decisions, like the decisions about what charges and situations should and should not make someone eligible for pretrial detention, and how those decisions should be made. Judges ensure that these legislative decisions are carried out in the cases before them.<\/p>\n<p>California, like many states, has a list of offenses that are eligible for pretrial detention (a list that <i>excludes<\/i> misdemeanors and low-level felonies like the ones Mr. Kowalczyk was arrested for). The state constitution then imposes a series of due process protections to make sure that decisions are made fairly. <\/p>\n<div class =\"sidebarwrapper\">\n<h2 class=\"center\" style=\"margin-top:15px\">Does money bail ever make sense?<\/h2>\n<div class=\"full\">\n<p>The court did make one big misstep, based on the empirical data. It allowed money bail to continue to be used so long as it is &#8220;reasonably attainable&#8221; by the accused person. But in a rational pretrial system, money bail has no place at all. <a href=\"\/scans\/APPR_Money_Bail_Issue_Brief.pdf\">The research shows<\/a> that money bails do not successfully change court appearance rates or reduce re-arrest rates. Instead, they drain money from communities &#8211; mostly Black and Brown communities &#8211; without providing any public safety benefit.<\/p>\n<\/div>\n<\/div>\n<p>The opinion in <i>Kowalczyk<\/i> makes clear that when judges &#8211; often at the request of prosecutors &#8211; use unaffordable cash bail to detain people, they are ignoring these constitutional rules and imposing their own judgments instead. Before this decision, when a judge set an unaffordable bail to detain someone, they didn&#8217;t have to go through the due process steps set out by the state constitution, because <i>technically<\/i>, the person wasn&#8217;t being detained. In theory, they could pay money to get out. In practice, however, detaining an unhoused person on a $75,000 bail is the same as saying he can&#8217;t be released at all &#8211; and that&#8217;s exactly what the California Supreme Court recognized in this case. <\/p>\n<p><b>The takeaway<\/b>: Advocates throughout the country should look at what their laws and constitutions actually say about who can be detained pretrial, determine whether they think those laws are fair or need to be changed, and then close the loophole of allowing judges and prosecutors to use unaffordable cash bail to ignore the law. <\/p>\n<h2>Using money to determine who goes to jail is illogical and unsafe<\/h2>\n<blockquote class=\"torn\">\n<p>&#8220;A system in which a person&#8217;s right to liberty turns on financial resources compromises public safety and raises equal protection and due process concerns.&#8221; &mdash; Groban concurrence, p. 8<\/p>\n<\/blockquote>\n<p>Even if decisionmakers think that pretrial detention of some people is necessary to keep communities safe (more on that below), when judges set unaffordable money bails it produces a fundamentally unfair and illogical system. <\/p>\n<p>First, money bail does nothing to guarantee that a rich person who poses a real threat to the public will actually stay in custody. Conversely, everyday people who do not pose a risk are stuck in jail simply because they can&#8217;t afford to pay. <\/p>\n<p>Second, a money bail system provides no meaningful due process protections. There is no requirement that there be sufficient evidence that someone is guilty, no requirement that a prosecutor prove that the person poses a public safety risk, and no examination of whether alternatives other than jail would be appropriate. Instead, the judge simply sets a monetary amount and the person is detained if they can&#8217;t pay it. This heightens the risk that innocent or non-dangerous people spend time in jail and encourages hasty, unthinking judicial decision-making that can put communities at risk. Notably, when Illinois eliminated monetary bail in 2023, the <a href=\"https:\/\/loyolaccj.org\/blog\/some-observations-pretrial-hearings-before-and-after-the-pfa\">length of detention hearings increased dramatically<\/a>, and judges considered more factors when making their decisions. <\/p>\n<p><b>The takeaway:<\/b> Advocates throughout the country should remove money from playing any role in their pretrial release systems, since it doesn&#8217;t have any bearing on safety. <\/p>\n<h2>The overuse of pretrial detention is actively harmful and doesn&#8217;t keep communities safe<\/h2>\n<blockquote class=\"torn\">\n<p>&#8220;Many people who are detained are never convicted of any crime; a substantial proportion of detainees is never even charged with one. Many others accept unfavorable plea offers, with potentially devastating repercussions for their employment, education, housing, access to public benefits, immigration status, and family stability. And some, forced to choose between remaining detained or pleading guilty to an offense they did not commit, choose to plead guilty to secure their release.&#8221; &mdash; Groban concurrence, p. 9<\/p>\n<\/blockquote>\n<p>Pretrial release should always be the default in the justice system. When someone is first arrested, they have not been proven guilty of a crime, and many people later have their cases dismissed, plead guilty to less serious charges, or are found not guilty. Estimates in some jurisdictions suggest that more than <a href=\"https:\/\/scholarship.law.slu.edu\/cgi\/viewcontent.cgi?article=2331&#038;context=lj\">50% of arrests end without a conviction<\/a>. Nonetheless, nationwide, <a href=\"\/reports\/pie2026.html\">over 75%<\/a> of people in jail custody are pretrial. This huge number of unconvicted individuals in jails makes them less safe environments by contributing to overcrowding. <\/p>\n<p class=\"prelist\">Pretrial jailing harms people in custody in a number of ways. People detained pretrial are more likely to: <\/p>\n<ul class=\"list\">\n<li><a href=\"https:\/\/www.uscourts.gov\/sites\/default\/files\/82_2_6_0.pdf\">lose their jobs and experience housing instability<\/a>;<\/li>\n<li><a href=\"\/blog\/2021\/06\/23\/jail_mortality\/\">die by suicide<\/a> or <a href=\"https:\/\/ajph.aphapublications.org\/doi\/abs\/10.2105\/AJPH.2018.304514\">overdose after release<\/a>;<\/li>\n<li>become ensnared in the criminal legal system again, as measured by<a href=\"https:\/\/perma.cc\/8BB3-8BPY\"> long-term re-arrest rates<\/a>;<\/li>\n<li><a href=\"https:\/\/perma.cc\/498S-LM6P\">miss a scheduled court date<\/a>;<\/li>\n<li>be<a href=\"https:\/\/perma.cc\/7NAN-S7HB\"> convicted<\/a> and be<a href=\"https:\/\/static.prisonpolicy.org\/scans\/ljaf_report_state-sentencing_fnl.ashx.pdf\"> sentenced to longer jail and prison terms<\/a>, worsening prison overcrowding and mass incarceration as a whole.<\/li>\n<\/ul>\n<p>Jurisdictions that have reduced the use of pretrial jailing <a href=\"\/blog\/2023\/07\/06\/bail-reform\/\">have not seen any rise in crime<\/a>. There is simply no evidence-based reason to continue the extremely high levels of pretrial detention that currently exist in the United States. <\/p>\n<p><b>The takeaway<\/b>: Advocates around the country should pursue laws that minimize the use of pretrial detention, seek to shrink jail populations, and provide robust due process protections to make sure that people are only behind bars if they truly pose a danger to others or are likely to willfully flee prosecution. <\/p>\n<p><i>In re Kowalczyk<\/i> has the potential to free tens of thousands of Californians each year as they are released on their own recognizance &#8211; or on money bail levels they can actually afford to pay &#8211; instead of being held in custody because they&#8217;re poor. The next step for California is implementation. Unfortunately, without rigorous efforts to require courts to follow a ruling like this, it could have little impact, <a href=\"https:\/\/www.law.berkeley.edu\/wp-content\/uploads\/archive\/2024\/06\/UCLAxUCB-2024-Largely-Unchanged_WEB_Pages.pdf\">as happened after the <i>In re Humphrey<\/i> decision<\/a>. But the reasoning in this case can provide a roadmap for people in other states interested in creating just, fair, and rational pretrial systems.<\/p>\n","protected":false},"excerpt":{"rendered":"<p>A recent case, In re Kowalczyk, affirms that money bonds are unfair, harmful, and make communities less safe.<\/p>\n","protected":false},"author":61,"featured_media":0,"comment_status":"open","ping_status":"closed","sticky":false,"template":"","format":"standard","meta":{"footnotes":""},"categories":[52,1],"tags":[],"coauthors":[93],"class_list":["post-18856","post","type-post","status-publish","format-standard","hentry","category-briefings","category-uncategorized"],"_links":{"self":[{"href":"https:\/\/www.prisonpolicy.org\/blog\/wp-json\/wp\/v2\/posts\/18856","targetHints":{"allow":["GET"]}}],"collection":[{"href":"https:\/\/www.prisonpolicy.org\/blog\/wp-json\/wp\/v2\/posts"}],"about":[{"href":"https:\/\/www.prisonpolicy.org\/blog\/wp-json\/wp\/v2\/types\/post"}],"author":[{"embeddable":true,"href":"https:\/\/www.prisonpolicy.org\/blog\/wp-json\/wp\/v2\/users\/61"}],"replies":[{"embeddable":true,"href":"https:\/\/www.prisonpolicy.org\/blog\/wp-json\/wp\/v2\/comments?post=18856"}],"version-history":[{"count":6,"href":"https:\/\/www.prisonpolicy.org\/blog\/wp-json\/wp\/v2\/posts\/18856\/revisions"}],"predecessor-version":[{"id":18859,"href":"https:\/\/www.prisonpolicy.org\/blog\/wp-json\/wp\/v2\/posts\/18856\/revisions\/18859"}],"wp:attachment":[{"href":"https:\/\/www.prisonpolicy.org\/blog\/wp-json\/wp\/v2\/media?parent=18856"}],"wp:term":[{"taxonomy":"category","embeddable":true,"href":"https:\/\/www.prisonpolicy.org\/blog\/wp-json\/wp\/v2\/categories?post=18856"},{"taxonomy":"post_tag","embeddable":true,"href":"https:\/\/www.prisonpolicy.org\/blog\/wp-json\/wp\/v2\/tags?post=18856"},{"taxonomy":"author","embeddable":true,"href":"https:\/\/www.prisonpolicy.org\/blog\/wp-json\/wp\/v2\/coauthors?post=18856"}],"curies":[{"name":"wp","href":"https:\/\/api.w.org\/{rel}","templated":true}]}}