California Supreme Court · April 30, 2026

In re Kowalczyk

S277910 | Opinion by Chief Justice Guerrero, unanimous

Case Overview

The California Supreme Court resolved two long-reserved questions about pretrial bail under the California Constitution. The decision builds on In re Humphrey (2021) and reshapes how trial courts must approach detention and bail-setting in noncapital cases.

The petitioner, Gerald John Kowalczyk, was held without bail after attempting to use stolen credit cards to buy a hamburger. The trial court denied bail entirely based on his prior record, despite the offenses not falling within the constitutional categories permitting detention. The Supreme Court used his case to clarify the framework that governs every bail determination going forward.

Two Key Holdings

Article I, § 12 and Article I, § 28(f)(3) Can Be Reconciled

In noncapital cases, a trial court has the authority to deny bail only as to the offenses specified in section 12, subdivisions (b) and (c): felonies involving violence, felony sexual assault, or felonies involving threats of great bodily harm.

Section 28(f)(3)'s mandate that public and victim safety be primary considerations applies to bail decisions, but it does not expand the list of offenses for which release on bail may be denied.

Bail Must Be Reasonably Attainable

Where pretrial detention is not authorized under section 12, and the court finds it necessary to condition release on monetary bail, bail must be set in a reasonable amount based on an individualized assessment of the totality of the circumstances — including the defendant's financial situation.

Bail need not be easily affordable or convenient, but courts cannot use artificially high or objectively unattainable bail as a back-door means of pretrial detention. The defendant bears the burden of supporting an inability-to-pay claim with reliable evidence.

CPDA is offering two free webinar sessions to help you put this decision to work for your clients. Attendees will receive materials to litigate bail motions and other practical handouts. Each session provides 1.0 hour of Participatory MCLE. Attendance is limited to criminal defense attorneys and allied defense professionals.

Friday, May 8, 2026 at 12:00 noon

With attorneys from Civil Rights Corps — the national civil rights law organization that has partnered with California public defenders to challenge unconstitutional wealth-based detention, filed over 100 pretrial habeas petitions in California since Humphrey, and helped reshape bail law across the country. Civil Rights Corps filed an amicus brief in Kowalczyk on behalf of petitioner.

Monday, May 11, 2026 at 3:30 p.m.

With Marsanne Weese and Rose Mishaan, the attorneys who litigated Kowalczyk from the trial court all the way to the California Supreme Court and won. Two of their cases have reached the California Supreme Court: In re Harris and In re Kowalczyk. Marsanne and Rose will provide practical materials for you to implement this decision for your clients. Moderated by Contra Costa Deputy Public Defender Evan Kuluk.

Live-Stream via Zoom | You may attend one or both sessions.
CPDA Members: $0 | Non-Members: $25

Read the Full Opinion

Download the full text of the California Supreme Court's unanimous decision in In re Kowalczyk.

Read Full Opinion (PDF)

Practical Takeaways

For practitioners, the post-Kowalczyk bail framework can be summarized as follows:

1. Detention requires Article I, § 12 findings.

A court may order pretrial detention only where the defendant is charge-eligible under § 12(b) or (c), the facts are evident or presumption great, and clear and convincing evidence supports a substantial likelihood of great bodily harm if released.

2. Consider less restrictive alternatives first.

Under Humphrey, the court must consider whether nonfinancial release conditions will reasonably ensure appearance and public/victim safety. Detention is appropriate only upon a clear and convincing finding that they will not.

3. If money bail is set, it must be reasonably attainable.

Money bail must be reasonable, individualized, and within reach for the defendant. It cannot be a pretextual detention order disguised as a bail amount.

4. The defendant carries the burden on inability to pay.

Conclusory assertions of indigency are not sufficient. The defendant must support inability-to-pay claims with reliable evidence, which may include an affirmation under penalty of perjury.

5. Probation violation hearings have parallel protections.

Penal Code § 1203.25 imposes similar release-conditions requirements, with specific protections including no unaffordable money bail and a prohibition on denying release for a first alleged misdemeanor probation violation.

Key Language From the Opinion

In our society liberty is the norm, and detention prior to trial or without trial is the carefully limited exception.

— quoting In re Humphrey (2021) 11 Cal.5th 135

Courts cannot use artificially high or objectively unattainable bail as an end run to effectuate pretrial detention where such detention is not authorized under section 12.

— Guerrero, C. J., Opinion of the Court

Bail must generally be set in an amount that is reasonably attainable, in order to effectuate the defendant's constitutional right to pretrial release on bail.

— Guerrero, C. J., Opinion of the Court

Concurring Opinions

Justice Groban (joined by Justices Liu and Evans) emphasized that § 12 already provides courts with sufficient tools to detain genuinely dangerous defendants, and that pretrial release conditions — stay-away orders, electronic monitoring, surrender of firearms or travel documents, drug testing, curfews — can address risks for defendants who fall outside § 12's categories.

Justice Groban also documented at length the well-established harms caused by pretrial detention. He observed that many people who are detained pretrial are never convicted of any crime, and a substantial proportion are never even charged with one. Others accept unfavorable plea offers with potentially devastating consequences for their employment, education, housing, access to public benefits, immigration status, and family stability. Some defendants, forced to choose between remaining in custody or pleading guilty, plead guilty to offenses they did not commit simply to secure release.

Citing empirical research, Justice Groban noted that defendants released pending trial have significantly lower rates of conviction. Being out of custody reduces time pressure, allows defendants to participate more effectively in their own defense, and gives them an opportunity to demonstrate to the court and prosecution that they are productive community members capable of complying with court orders — which can support more lenient treatment in plea negotiations.

By contrast, a person who is detained cannot go to work, attend school, participate in programming, or perform family duties. Detention can lead to loss of employment, housing, educational opportunities, medical care, public benefits, and child custody — with cascading effects on family members and the broader community. Justice Groban underscored that these harms are borne not only by defendants who are ultimately convicted, but also by the many who are detained and later released without conviction.

Justice Wiley filed a brief concurrence noting that the decision "invites legislative and executive action" and emphasizing that the political branches are better positioned than courts to design a comprehensive bail system.

Provided by the California Public Defenders Association

This summary is informational only and is not a substitute for the full text of the opinion or independent legal research.