It started with a cheeseburger. In January 2021, Gerald Kowalczyk, a disabled, unhoused man in San Mateo, California, used a stranger’s credit card that he found on the ground to purchase a $7 cheeseburger. According to his legal representatives, Kowalczyk quickly had a “change of heart” and asked for a refund. When the manager refused, he left the restaurant without the food. The then-55-year-old was arrested shortly thereafter on identity theft, petty theft and other charges. While the underlying offense was a nonviolent, small-dollar crime, Kowalczyk had more than 60 prior convictions and a long history of failing to abide by pretrial release conditions. As a result, he scored in the highest-risk category under the state’s pretrial release risk assessment. A judge set his bail at $75,000, an amount he could not afford. When Kowalczyk asked for it to be lowered, the judge said no and revoked his bail altogether. Kowalczyk filed a habeas corpus petition in response — a legal challenge typically filed to argue that a person’s detention is unlawful. By the time the California Supreme Court got to it, Kowalczyk had already spent six months in jail, pleaded no contest to misdemeanor identity theft, and been released, rendering his petition moot. But the court took the opportunity to issue a decision that reform advocates called “seismic” and “monumental” on a call with journalists earlier this week. The court unanimously affirmed late last month that the California state constitution gives most people accused of crimes a right to pretrial release, and that judges cannot make that right meaningless by setting bail at an amount that the person can prove is financially impossible for them to meet. The court also held that if prosecutors want someone held in jail, they must show that the case fits within the state constitution’s limited and specific “no-bail” categories — mostly involving violent offenses — and a judge must hold a hearing before such an order can be made. In ordinary conversation, “bail” often means money. But legally, the concept is broader: It is the set of conditions under which someone accused of a crime may be released while their case is pending. Money bail is one tool courts have used to secure that release, and one key question in Kowalczyk’s case was what happens when that tool becomes so expensive that the opportunity for release only exists on paper. In a concurring opinion, Justice Joshua Groban argued that the status quo illustrated in cases like Kowalczyk’s deprives “those accused of crimes of their freedom based on their financial circumstances, without any trial or conviction.” He continued, “Today’s opinion marks the end of that practice in our state.” Joshua Martin, a deputy district attorney in San Mateo County, where Kowalczyk was charged, sounded more cautious. He told me that the office was not surprised by the ruling, and would follow it, but said the decision leaves trial courts with major practical questions — including what counts as “reasonably attainable” bail, and what evidence judges should require when someone says they cannot pay. He said nonfinancial release conditions — like releasing people on a promise to return or electronic monitoring — are often effective, but prosecutors still worry about cases where people repeatedly miss court dates or violate protective orders. “I’m really waiting to see how it plays out in court, probably in the same way everyone else is,” Martin said. That kind of uncertainty is not uncommon after sweeping decisions, and in some ways, California has been here before. In March of 2021, when Kowalczyk was still in jail over that uneaten cheeseburger, the state Supreme Court weighed in on the case of Kenneth Humphrey. There, too, the court held that judges could not use money bail to detain people simply because they were poor. That ruling was hailed as a landmark, but its effect was murkier. A 2024 report from the UCLA School of Law found no evidence that the Humphrey decision had reduced California’s pretrial jail population or bail amounts, or that it shortened the average amount of time people spent in jail before trial. Lawyers for the Civil Rights Corps, the nonprofit law firm that represented Kowalczyk, expressed confidence that the new ruling would have a larger impact than its predecessor because it not only reaffirmed the unconstitutionality of wealth-based detention, but it also expanded to a more fundamental question: When can the state detain someone before trial at all? Under Humphreys, researchers from UCLA found that judges would often set high bail, claim they had considered the defendant's ability to pay, but still maintained that the high amount was the least restrictive way to address flight or public safety concerns. The Kowalczyk decision, by contrast, is crystal clear that pretrial release is the constitutional norm, and can only be limited under specific circumstances. That shift — from the question of money, to the question of the state’s authority to keep people locked up pretrial in general — mirrors a bigger one happening nationwide in the debate over pretrial justice. Erin George, national director of policy for The Bail Project, a nonprofit that advocates for less restrictive bail policies across the country, told me that for many years, the question of wealth was a natural entry point and proxy for a deeper debate on pretrial liberty. Increasingly, she said, “the conversation is very explicitly about detention.” Take Illinois, where in 2021 the state legislature passed a bill abolishing cash bail and replacing it with a system in which prosecutors can seek detention based on public-safety or flight-risk findings. At the time, the rationale for the change was largely built on questioning the logic of wealth-based detention. Commenters argued that a rich person should not have a special right to leave jail compared to a poorer person accused of the same crime. Earlier this month, after the killing of a Chicago police officer whose alleged shooter had been released on electronic monitoring while awaiting trial in another case, Republican lawmakers renewed calls to change the law, arguing in part that the state needed to come into line with President Donald Trump’s executive order targeting “cashless bail.” But the plans that have been floated have not sought to restore money bail, but rather proposed new means of revoking pretrial release, or creating a presumption of detention for people with violent convictions. Similar legislative efforts to increase pretrial detention outright have also gained momentum across the country. In New Hampshire, a rollback of the state’s earlier bail reforms lowered the standard prosecutors must meet to deny bail, and state officials have pointed to rising jail populations as proof the new approach is working. Later this month, voters in Alabama will decide whether to expand the list of charges for which judges can deny bail. Similarly, in November, voters in Indiana will vote on a constitutional amendment that would dramatically expand judges’ ability to hold people pretrial if they determine that no conditions of release could reasonably protect public safety. Bail reform in New York offers a different caution. Five years after it took effect, a recent statewide analysis found that judges were detaining far fewer people than they likely would have under pre-reform practices. But the report also found that when bail is set, it is often higher and harder to pay than before the reforms, and racial disparities remain, with Black defendants often assigned higher bail amounts than White defendants facing the same charges. George said that pattern has shown up elsewhere, too, citing the aftermath of a 2017 reform effort in New Jersey. “Racial disparities in bail setting and in pretrial decision-making remain significant,” she said. “That just speaks to the deeply embedded racial disparities across the criminal justice system.” |
