SAN FRANCISCO, Calif. — The California Supreme Court on Thursday issued a sweeping decision clarifying the constitutional limits on pretrial detention and the setting of bail, holding that courts may not deny bail outside narrow constitutional categories and generally may not set bail at levels a person cannot afford.
In a unanimous opinion authored by Chief Justice Patricia Guerrero, the court reaffirmed that “our state and federal laws generally presume that a person charged with a crime will not be detained prior to trial.”
The ruling in In re Kowalczyk resolves two major questions left open by the court’s 2021 decision in In re Humphrey: how to reconcile competing constitutional provisions governing bail and whether judges may impose bail beyond a person’s ability to pay.
At the core of the opinion is a reaffirmation of the constitutional baseline: “In our society liberty is the norm, and detention prior to trial or without trial is the carefully limited exception.”
The case arose from the prosecution of Gerald John Kowalczyk, who was charged with identity theft and related offenses after attempting to use multiple credit cards at a fast-food restaurant. A trial court initially set bail at $75,000, then later denied bail entirely based on his criminal history and concerns about public safety and flight risk.
Although Kowalczyk ultimately resolved his case and was released, the Supreme Court took up the matter because it presented recurring constitutional questions “capable of repetition yet likely to evade review.”
The justices first addressed whether courts may deny bail more broadly under Marsy’s Law, enacted as Proposition 9, which states that a person “may be released on bail” and that public and victim safety must be the primary considerations.
The court rejected the argument that this provision expands judicial authority to deny bail beyond the categories listed in Article I, Section 12 of the California Constitution.
Instead, the court held that the two provisions must be read together and harmonized. “In noncapital cases, a trial court has the authority to deny bail only as to offenses specified in section 12, subdivisions (b) and (c),” the court wrote.
Those provisions allow denial of bail only in limited circumstances, including certain violent felonies, felony sexual assault cases, and cases involving credible threats of serious harm supported by clear and convincing evidence.
The court emphasized that Marsy’s Law “does not expand the list of offenses for which release on bail may be denied beyond those delineated in section 12.”
In reaching that conclusion, the justices relied heavily on constitutional interpretation principles, including the presumption against implied repeal. They found no evidence that voters intended to overturn the longstanding constitutional right to bail, which dates back to California’s founding.
The opinion noted that the Constitution has long guaranteed that a person “shall be released on bail by sufficient sureties,” subject only to specifically defined exceptions.
The court rejected the argument that the use of the word “may” in Marsy’s Law creates broad discretion to deny bail. Instead, it concluded that the language reflects the possibility of release, not an expansion of judicial authority to detain.
“We are reluctant to conclude that the voters who passed Proposition 9… intended to authorize courts to exercise broad ‘judicial discretion’ in deciding whether to grant bail,” the court wrote.
The ruling makes clear that courts must follow the procedural and evidentiary requirements set forth in Section 12 before denying bail, including making findings supported by clear and convincing evidence.
Turning to the second issue, the court addressed whether judges may set bail at amounts that exceed a person’s ability to pay.
The justices grounded their analysis in both constitutional text and the equal protection and due process principles articulated in Humphrey. That earlier decision held that it is unconstitutional to detain someone “solely because” they lack financial resources.
Building on that precedent, the court concluded that bail must generally be set at a level that is reasonably attainable.
“As a general rule, the right to reasonable bail means that the court may not set bail in an amount that is objectively unattainable for the defendant,” the court wrote.
The opinion continued, “The right to release on bail generally cannot be conditioned on financial payments that are set at amounts known to be insurmountable or objectively unachievable based on the defendant’s demonstrated financial circumstances.”
At the same time, the court cautioned that bail does not need to be nominal or easily affordable. Judges retain discretion to weigh multiple factors, including public safety, the seriousness of the offense, criminal history, and the likelihood of appearing in court.
The court reiterated that bail decisions must be individualized. “What constitutes reasonable bail… is necessarily an individualized assessment which will depend on numerous factors,” the opinion states.
Those factors include “the protection of the public as well as the victim, the seriousness of the charged offense, the arrestee’s previous criminal record and history of compliance with court orders, and the likelihood that the arrestee will appear at future court proceedings.”
Critically, the court made clear that unaffordable bail cannot be used as a substitute for lawful detention. “Courts cannot use artificially high or objectively unattainable bail as an end run to effectuate pretrial detention where such detention is not authorized,” the opinion states.
The justices also tied this principle to the constitutional prohibition on excessive bail, emphasizing that bail must be reasonable in light of all relevant circumstances.
“Section 12 provides for the right to be ‘released on bail by sufficient sureties,’ and prohibits setting bail that is ‘[e]xcessive,’” the court wrote, adding that this framework supports limits on unattainable bail amounts.
The court warned that allowing judges to set unaffordable bail would effectively nullify constitutional protections. “If a trial court could generally deny release by setting unattainable bail… these limits would have no real force or effect,” the opinion states.
Such a practice, the court suggested, would permit detention even in cases where the Constitution does not allow it, including nonviolent offenses.
The decision also addressed competing policy concerns raised by prosecutors and defense advocates.
Prosecutors argued that limiting bail and detention authority could result in the release of individuals who pose risks to public safety. The court acknowledged those concerns but pointed to the existing constitutional framework as providing “significant latitude” to detain dangerous individuals under the specified categories.
At the same time, the court noted the substantial harms associated with pretrial detention, including impacts on employment, housing, family stability, and the ability to prepare a defense.
The justices declined to expand detention authority based on policy arguments, emphasizing that any such change must come from voters.
“We are unable to disregard this framework merely because the People would prefer a more expansive authority to detain individuals,” the court wrote.
Quoting prior precedent, the opinion added, “If the constitutional guaranties are wrong, let the people change them — not judges or legislators.”
Applying its reasoning to Kowalczyk’s case, the court found that the trial court erred in denying bail without making the required findings under Section 12.
“In light of this holding, we conclude the trial court… erred in denying bail… without determining whether it could make the findings required for ordering pretrial detention,” the court wrote.
Although the case itself was technically moot, the court’s decision provides binding guidance for trial courts across California.
The ruling reinforces a broader shift in California bail law that began with Humphrey, moving away from a system in which financial resources often determined pretrial freedom.
By clarifying that bail must be both constitutionally grounded and realistically attainable, the court has set clearer limits on judicial discretion while reaffirming the principle that pretrial liberty is the norm.
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