by Chuck Sharman

Thousands more Californians arrested every year could be eligible for pretrial release after a ruling by the state Supreme Court on April 30, 2026. Building on an earlier decision banning pretrial detention for lack of cash to post bail, the Court reiterated that arrestees are entitled to a presumption of release under the state constitution, and any effort to detain them to await trial triggers a series of constitutionally required analyses.

The first test occurs shortly after a defendant’s arrest and booking into jail, when a trial court must determine whether the charged crime fits the list of exceptions to the constitution’s guarantee that “[a] person shall be released on bail by sufficient sureties, except for capital crimes when the facts are evident or the presumption great.” Enumerated at Art.1 § 12(b) and (c), these exceptions include “certain felony cases involving violence, sexual assault, or threats of great bodily harm,” the Court noted; in the latter instance, the trial court must conduct a subsequent search for “clear and convincing evidence” that there is a “substantial likelihood” the defendant will inflict those harms if released.

If the charged crime is not listed in § 12(b) or (c), the defendant may yet be subject to pretrial detention, thanks to a 2008 ballot initiative which added § 28(f)(3) to the constitution. That provision states that “[a] person may be released on bail by sufficient sureties … tak[ing] into consideration the protection of the public, the safety of the victim, the seriousness of the offense charged, the previous criminal record of the defendant, and the probability of his or her appearing at the trial or hearing of the case.”

Adding some confusion, § 28(f)(3) concludes by declaring that “[p]ublic safety and the safety of the victim shall be the primary considerations” in making a bail determination—though respecting the defendant’s ability to pay is a guarantee implicit in § 12, as the Court previously held. See: In re Humphrey, 11 Cal. 5th 135 (2021).The State argued that this conflict meant the voters intended § 28(f)(3) to supersede the more limited circumstances justifying bail detention in § 12(b) and (c). But the Court disagreed.

In rejecting the State’s argument, the Court allowed that “shall be released” in § 12 means mandatory. But it disagreed that “may be released” in § 28(f)(3) is permissive, finding instead that it simply framed a possibility. In this way it determined that the two provisions could be resolved, and the guarantee of pretrial release for noncapital charges not excluded by § 12 may be circumscribed by the concerns about public and victim safety expressed in § 28(f)(3).

A Defendant Jailed Six Months for a Nonviolent Misdemeanor

In the case before the Court, Defendant Gerald John Kowalczyk was not charged with a crime listed in § 12(b) or (c). In fact, he was accused of using a found credit card to charge a $7 hamburger—which he then left behind, along with the card. At worst his crime was a nonviolent misdemeanor. But prosecutors asked the Superior Court for the County of San Mateo to hold him in pretrial detention anyway, pointing to a lengthy but nonviolent criminal record, which included periods under post release supervision when he failed to abide by imposed conditions. That request was granted, and bail was set at $75,000—an amount far out of reach for Kowalczyk, who was indigent and homeless, leaving him jailed for six months until he reached a plea agreement.

As a threshold matter, the Court agreed that Kowalczyk could be held on a charge not listed in § 12(b) and (c), since those sections merely enumerate cases in which release must be denied. However, the trial court should then hold a hearing at which the prosecutor argues under § 28(f)(3) that “[p]ublic safety and the safety of the victim” requires pretrial detention for the non-enumerated charge. Since the superior court held no such hearing to make that determination for Kowalczyk, his detention was unjustified, the Court continued.

Even if such a hearing had been conducted and Kowalczyk were ordered detained, a further hearing would be needed to determine the amount of his bail, the Court said. As a rule, this should not be set at an “unattainable” level. Echoing its holding in Humphrey, the Court said that “the common practice of detaining criminal defendants based solely on their financial condition violate[s] state and federal equal protection and due process principles.” But it declined to make ability to pay the controlling factor in setting bail, which must reflect not only those resources that the defendant claims but the “totality of [his] circumstances.”

“Totality of the Circumstances” Explained

What does that include? The Court said it “includes a defendant’s financial situation and resources available to satisfy a monetary bail order.” It also includes “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.” Again, for Kowalczyk, no such hearing occurred, rendering his detention unconstitutional, the Court said.

The State argued that if pretrial detention were prohibited outside of the circumstances enumerated in § 12 (b) and (c), then courts must be free to set bail prohibitively high—as it had been for Kowalczyk; to hold otherwise would kneecap § 28(f)(3), leaving courts with “insufficient authority to ensure … public and victim safety and to guard against flight risk.” But the Court rejected this argument. As concurring Justice Joshua Groban acknowledged, “this practice, however common and long-standing it may be, is generally inconsistent with the constitutional right to pretrial release and with principles of equal protection and due process.”

Kowalczyk’s habeas petition was filed to challenge his bail when it was set in 2021. Six months later, he pleaded guilty to misdemeanor identity theft in exchange for time served and was released. The State filed a motion to dismiss his habeas petition as moot, which the Court of Appeal granted. Kowalczyk, aided by San Francisco attorneys Marsanne Weese and Rose Mishaan of Weese’s eponymous firm, sought review at the Court. It sent his petition back to the Court of Appeal “to vacate its dismissal order, conduct further proceedings, and issue an opinion on the question that we reserved in Humphrey, i.e., the potential reconciliation of the bail provisions in our state Constitution.” Finding no conflict, the Court of Appeal dismissed the habeas petition as moot, and the Court affirmed, for the reasons it explained. See: In re Kowalczyk, 19 Cal. 5th 593 (2026).

California voters rejected a bid to abolish cash bail when they defeated Proposition 57 in 2020. When the Court decided Humphrey the following year, it prohibited judges from setting bail above a defendant’s ability to pay absent finding some risk to the public, or a risk that the defendant might fail to appear. But a 2022 study revealed that many state judges interpreted the ruling to give them more power to detain defendants pretrial. See: Coming Up Short - The Unrealized Promise of In re Humphrey, UCLA School of Law & Berkeley Law (Oct. 2022). Whether the Court’s latest ruling will change their minds remains to be seen.  

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