EASTHAMPTON, Mass. — A recent analysis by the Prison Policy Initiative argues that money bail does little to protect public safety and often results in unconstitutional pretrial detention, highlighting a landmark California Supreme Court decision that advocates say could reshape pretrial justice across the state.
According to the Prison Policy Initiative, money bail does little to no good for protecting society. Oftentimes, money bail and pretrial detention are unconstitutional under California’s Constitution. The Prison Policy Initiative urges the implementation of measures necessary to create fair and rational systems.
In January 2021, Gerald Kowalczyk, a man who was disabled and unhoused at the time, found a credit card on the floor. He planned to buy food with the card until he felt guilty and tried to return the food. Shortly after leaving the establishment without food, Kowalczyk was arrested and charged with both petty theft and identity theft.
California law generally would not have allowed Kowalczyk to be detained pretrial on such minor, nonviolent charges. However, a judge set a $75,000 bond in the case, leaving Kowalczyk in jail for six months before he pleaded guilty, according to the Prison Policy Initiative.
In April of this year, the California Supreme Court expanded on its previous ruling in In re Humphrey and held that Kowalczyk’s detention was unconstitutional under the California Constitution. The court stated that detaining people through excessive bail is effectively the same as detaining them without bail, a practice that can only occur under limited circumstances and with rigorous due process protections. Because of the ruling, unaffordable bail is no longer an option in California courts; any bail that is imposed must be set at an amount a person can reasonably pay.
Pretrial reform advocates have argued for years that using money to determine who remains incarcerated before trial creates a lawless system that places excessive discretion in the hands of judges and prosecutors. They have also contended that money bail privileges wealthy people while leaving others detained solely because they lack financial resources. Additionally, advocates argue that the overuse of pretrial detention causes more harm than good.
The Prison Policy Initiative reports that In re Kowalczyk could potentially free tens of thousands of people each year in California if implemented appropriately. While the decision is not binding precedent outside California, the organization argues that the court’s reasoning provides important guidance for policymakers nationwide.
“When prosecutors and judges use money bail to detain people, they are imposing their own judgments instead of following the law.”
The debate surrounding cash bail also raises broader questions about the separation of powers. Legislatures are responsible for determining what the law is, while judges are tasked with applying those laws to individual cases, according to the Prison Policy Initiative. The Constitution separates these functions because legislatures are best positioned to make policy decisions, while judges are intended to ensure those decisions are carried out in the cases before them.
California maintains a list of offenses eligible for pretrial detention, a list that does not include misdemeanors and low-level felonies similar to those for which Kowalczyk was arrested.
The opinion in Kowalczyk makes clear that when a judge uses unaffordable cash bail to detain someone, the judge is disregarding constitutional requirements and substituting personal judgment. The Prison Policy Initiative notes that before this decision, judges who imposed unaffordable bail were not required to follow the due process protections outlined in the state Constitution.
In practice, detaining an unhoused person on a $75,000 bail amount is equivalent to stating that person cannot be released at all, and that reality is what the California Supreme Court recognized in this case.
Advocates across the country should examine what their laws and constitutions actually say about who may be detained before trial, determine whether those laws are fair or should be changed, and close the loophole that allows judges and prosecutors to use unaffordable cash bail to circumvent the law, according to the Prison Policy Initiative.
Even if policymakers believe that pretrial detention is necessary in some cases to protect public safety, the use of unaffordable money bail creates what the organization describes as a fundamentally unfair and illogical system.
The Prison Policy Initiative emphasizes two key takeaways. First, money bail does nothing to ensure that a wealthy person who poses a genuine threat to public safety remains in custody. Second, money bail provides no meaningful due process protections. There is no requirement that sufficient evidence establish a person’s guilt, no requirement that prosecutors prove a person poses a danger to the public, and no examination of whether alternatives to incarceration would be appropriate. Instead, a judge simply sets a monetary amount, and the person remains detained if they cannot pay it. According to the organization, this increases the likelihood that innocent or non-dangerous people spend time in jail and encourages hasty judicial decision-making that can place communities at risk.
Pretrial release should remain the default in the justice system, advocates argue. When someone is first arrested, guilt has not been established, and many people later have their cases dismissed, plead guilty to less serious charges, or are ultimately found not guilty.
Pretrial detention harms people in custody in several ways, according to the Prison Policy Initiative. Individuals held before trial are more likely to lose their jobs, overdose after release, miss scheduled court appearances and receive longer jail or prison sentences.
The next challenge for California is implementation. Without rigorous efforts to ensure courts comply with the ruling, the decision could have limited practical impact, similar to what occurred after the In re Humphrey decision. The Prison Policy Initiative states that the reasoning in Kowalczyk can serve as a roadmap for advocates in other states seeking to create fair and rational pretrial systems.
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