By David M. Greenwald
San Francisco, CA – Public defenders have filed an amicus brief last week, urging the California Supreme Court to stop lower courts from undermining its landmark 2021 ruling in Humphrey, which held that setting bail at an amount a person cannot afford is unconstitutional.
Despite the landmark Humphrey decision, many courts have continued to detained accused individuals through the imposition of bail that they cannot afford.
The California Supreme Court has accepted Kowalczyk for review, and a coalition of public defenders filed an amicus brief Nov. 7 urging the California Supreme Court to reverse Kowalczyk and strongly affirm its Humphrey 
ruling.
Misdemeanor cases form a huge portion of California criminal court matters, so the way the High Court rules in the Kowalczyk case could affect hundreds of thousands of Californians.
The amicus coalition includes the California Public Defenders Association, Alameda and San Francisco Counties’ Public Defender Offices, and the Los Angeles County Alternate Defender’s Office.
“We must not penalize the poor for being poor,” Former Chief Justice Tani G. Cantil-Sakauye wrote in the 2016, 2016 State of the Judiciary report highlighting pretrial detention/release as an area of concern for the judicial branch.
The brief notes, “The statement also reflects the premise of this Court’s landmark 2021 Humphrey decision, holding that setting bail at an amount that a person cannot afford to pay is unconstitutional such that courts must always ‘consider the individual arrestee’s ability to pay’ in setting pretrial bail.”
Yet there is recent evidence that courts are not following Humphrey.
A 2022 report by UCLA School of Law Bail Practicum and UC Berkeley Law Policy Advocacy Clinic found that “judges across the state often ignore or procedurally misapply the requirements set forth in Humphrey.”
The report reviewed California’s 58 counties in the 18 months following the Humphrey decision, and found “no evidence of a decrease in jail population, bail amounts, or average length of pretrial detention in California, and that bail continues to be set at amounts people cannot afford to pay, contravening Humphrey.”
The brief notes, “Given this alarming post-Humphrey landscape, Kowalczyk presents grave issues for this Court’s review: deprivation of pretrial liberty without due process; equal access to justice; the premise that a defendant’s wealth or poverty should not dictate their access to liberty during the pendency of a criminal prosecution.”
They add, “The issues that guided this Court’s decision in Humphrey underlie basic principles of due process and equal protection under the state and federal constitutions.”
The Humphrey ruling sets out limited circumstances under which a person accused of a crime can be detained pretrial. Kowalczyk effectively expands those exceptions. However, the California Constitution and state law have long enshrined the right to bail as a mechanism for release in all offenses except death penalty cases. In its amicus brief, the coalition of state public defender organizations argue that Kowalczyk, if upheld, would result in a dramatic and unjust expansion of pretrial detentions.
As the Humphrey Court declared, “[i]t is one thing to decide that a person should be charged with a crime, but quite another to determine, under our constitutional system, that the person merits detention pending trial on that charge.”
“The California Supreme Court should be offended by the Kowalczyk court’s unwarranted expansion of pretrial detention, which thwarts the High Court’s clear directive in Humphrey that setting unaffordable bail is unconstitutional,” said Sujung Kim, manager of the San Francisco Public Defender’s Office Research Unit.
Kim added, “The Supreme Court should overturn Kowalczyk, which emboldens courts across the state to continue disregarding and misinterpreting Humphrey, placing hundreds of thousands of Californians at risk of pretrial detention simply because they are poor. The High Court must set a bright-line rule that folks charged with non-violent misdemeanor crimes should never be jailed pretrial.”
“Most people recognize that it’s not fair to have a two-tiered legal system—one for the poor, who get detained pretrial because they can’t afford bail, and one for the rich, who can,” said San Francisco Public Defender Mano Raju. “Unnecessarily detaining people pretrial or setting unaffordable money bail takes a severe financial toll on people and their families, and exacerbates the legal system’s already egregious racial inequities.”
Pretrial detention is expensive, destabilizes people’s lives and gives prosecutors an unfair advantage in plea negotiations, as people in jail are more likely to plead to a crime, even if they are innocent, so they can get out of jail. In Humphrey, the California Supreme Court recognized that “the disadvantages to remaining incarcerated pending resolution of criminal charges are immense and profound.”
“In a time when many politicians are stoking fears around public safety, it’s important to realize that detaining individuals pretrial is actually more likely to result in a person becoming involved with the criminal legal system again,” said Kathleen Guneratne, assistant public defender at the Alameda County Public Defender’s Office. “If we are serious about making our legal system less racist and about making communities stronger and safer, we need to make sure our courts are not rolling back pretrial protections.”
