CALIFORNIA — Pretrial release is the general practice, while detention before conviction is intended to be limited under the law. The Supreme Court has noted that monetary conditions of release must be set at a reasonable amount. A California bail case involving Gerald Kowalczyk examined the practice of setting bail beyond an individual’s ability to pay, resulting in the accused remaining incarcerated before trial.
Critics have argued that California courts have operated an unconstitutional shadow detention system. The procedure was straightforward: “Set bail at an amount the defendant cannot pay, and the result is the same as ordering detention outright,” according to the article regarding the case, “California law limiting bail is clear. Will judges keep ignoring it?”
During the Kowalczyk ruling, the California Supreme Court stated, “Pretrial detention requires strong evidence of a serious charge and clear and convincing evidence establishing a substantial likelihood that the defendant’s release would result in great bodily harm to others.”
Instead, Justice Joshua P. Groban explained in a written judicial opinion that courts have used money bail to detain people accused of nonviolent offenses, resulting in “devastating repercussions for their employment, education, housing, access to public benefits, immigration status, and family stability.”
“The ruling closes loopholes unambiguously and unanimously.”
Importantly, the Kowalczyk ruling emphasizes that courts can no longer use unaffordable bail to effectively detain individuals. The article explains that “where detention isn’t authorized, bail must be set at an attainable amount, based on the defendant’s actual circumstances.”
Judges questioned a defendant’s financial situation in one of nearly 250 observed cases. “In more than 5% of hearings, judges cited no legal standard at all when ordering detention.”
The article also stated, “More than 90% of people jailed pretrial were charged with offenses that didn’t even qualify for detention under the California Constitution: shoplifting, driving without a license, and vandalism.”
Following these findings, Silicon Valley De-Bug, a community-based organization, provided additional analysis regarding the implementation of bail practices across the state.
California is one of only two states that provides no funding for trial-level public defense, resulting in 58 counties operating without statewide standards for indigent defense services.
The Kowalczyk ruling issued last week, according to the article, requires “courts to make individualized findings about flight risk, public safety, alternative release conditions, and ability to pay — which means defense attorneys must be present at or before arraignment, prepared to make ability-to-pay arguments, demand findings, and challenge unaffordable bail on the record.”
Additionally, the ruling requires judges to consider nonmonetary release conditions. “Drug treatment, check-ins, social services referrals, and, in serious cases, ankle monitoring — before resorting to money bail or detention,” the article states.
Essentially, these resources are available only in counties that have implemented pretrial support systems beyond traditional law enforcement supervision.
In addition, the Judicial Council, which establishes policy for California courts, “should be able to establish monitoring standards, reporting requirements, and training protocols that ensure courts no longer impose unnecessary or unconstitutional pretrial incarceration.”
The article recommends that the Judicial Council ensure courts do not impose unconstitutional pretrial detention practices.
As a result, “tens of thousands of Californians who spent similar time behind bars unjustly lost jobs and homes and custody of their children because the system treated their poverty as grounds for imprisonment.”
The issue highlights ongoing concerns about equal treatment under the law and whether pretrial detention practices are consistent with constitutional protections.
The Supreme Court clarified what the California Constitution has provided since 1849: “Pretrial liberty is the norm. Pretrial detention is the carefully limited exception. There is a good reason for the presumption of innocence: 1 in 3 California arrests does not lead to any conviction, and upending people’s lives by jailing them pretrial is so destabilizing it actually increases future crime.”
These findings raise broader questions about how the use of pretrial detention aligns with the presumption of innocence.
“Let’s ensure this presumption of innocence means something in practice if you or your loved one needs it,” the article states.
Follow the Vanguard on Social Media – X, Instagram and Facebook. Subscribe the Vanguard News letters. To make a tax-deductible donation, please visit davisvanguard.org/donate or give directly through ActBlue. Your support will ensure that the vital work of the Vanguard continues.
