Recent Changes to CA's Bail law

Shared with you by the Law Office of Devina Douglas

​The California Supreme Court’s April 30, 2026 decision in In re Kowalczyk represents a significant clarification—and tightening—of constitutional limits on cash bail in California. The ruling builds on earlier precedent, particularly In re Humphrey (2021), and directly addresses a widespread practice in trial courts: setting bail at amounts defendants cannot realistically afford, thereby creating de facto pretrial detention.

At its core, the case arose from the detention of Gerald Kowalczyk, a homeless man who was held on $75,000 bail after attempting to use a stolen credit card to purchase a $7 meal. Unable to pay, he remained incarcerated for six months before resolving his case. (Although his individual claim became technically moot, the California Supreme Court took up the case to resolve broader constitutional questions regarding bail practices.) 

The Court’s central holding is that, except in narrowly defined circumstances where detention is constitutionally authorized, bail must be set at a level that is “reasonably attainable” for the defendant. In other words, courts may not set bail at an amount they know a defendant cannot afford simply to ensure detention as doing so violates constitutional guarantees of due process and equal protection, as well as California’s long-standing presumption in favor of pretrial release. 

A key legal issue in the case was the interaction between two provisions of the California Constitution. Article I, section 12 establishes a general right to bail, with limited exceptions (primarily for capital crimes or certain serious felonies involving threats of violence). Meanwhile, Article I, section 28—added by Proposition 9 (Marsy’s Law)—emphasizes that public and victim safety should be primary considerations in bail decisions. Lower courts had interpreted section 28 as expanding judicial authority to deny bail or impose high bail for public safety reasons.

The Supreme Court rejected that expansive interpretation. It held that section 12 provides the exclusive circumstances under which bail may be denied in noncapital cases, and that section 28 does not broaden those categories. Instead, section 28 must be harmonized with section 12, meaning public safety considerations can inform bail decisions, but cannot justify detention outside the constitutionally specified exceptions. 

This clarification has major practical consequences. First, it limits judges’ ability to use high bail as a workaround for preventive detention. If a defendant does not fall within the constitutional categories permitting denial of bail, the court must either release the individual (with or without conditions) or set bail at an amount the defendant can realistically meet. 

Second, the decision reinforces that wealth-based detention is unconstitutional. The Court emphasized that pretrial detention cannot be based solely on a person’s inability to pay. This principle echoes Humphrey but goes further by explicitly rejecting the practice—still common in many counties—of setting unaffordable bail amounts in routine cases. 

Third, the ruling encourages greater use of non-monetary conditions of release. Courts retain the authority to address public safety and flight risk, but must do so through less restrictive means where possible, such as supervised release, electronic monitoring, or other tailored conditions. The decision thus shifts the focus from financial conditions to individualized risk assessment. Importantly, the Court did not eliminate cash bail or require that bail always be affordable in a subjective sense. Judges are not required to accept unsupported claims of indigency, and they may still deny bail altogether—but only when the case fits within the constitutional exceptions (e.g., serious violent felonies with clear public safety risks). 
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The broader impact of Kowalczyk is likely substantial. Legal observers expect it to affect thousands of cases by constraining judicial discretion and standardizing bail practices across California. It also signals the Court’s continued commitment to reducing wealth-based disparities in the criminal justice system, even after voters rejected a 2020 ballot initiative that would have abolished cash bail entirely.

In sum, In re Kowalczyk does not abolish cash bail, but it sharply limits how it can be used. The decision establishes that unaffordable bail is, in most cases, unconstitutional; that the right to pretrial release remains the default; and that public safety concerns must be addressed within, not beyond, the constitutional framework governing bail.