Striking Down Unaffordable Money Bail & Pretrial Detention for Lower-Level Crimes in California

California

In re Kowalczyk

In May 2026, the California Supreme Court issued one of the most liberatory decisions in U.S. history, unanimously holding that jailing a person pretrial simply because they can’t pay money bail is unconstitutional. This holding in In re Gerald Kowalczyk is based on longstanding and fundamental principles found in both the United States and California Constitutions.

The California Supreme Court also held that the vast majority of people accused of crimes must be released prior to trial under the California Constitution and reaffirmed rigorous procedural protections that the government must follow if it seeks to detain a presumed innocent person. Specifically, consistent with article I, section 12 of the California Constitution, courts cannot detain anyone charged with a misdemeanor or anyone charged with a nonviolent or nonsexual felony. This holding will ensure pretrial release and prevent family separation across all lower-level, “nonviolent” felony cases in California. For others in more serious cases, the Court held that it is unconstitutional to impose the “significant” harms of pretrial detention – “the risk of losing one’s job, home, or custody of a child, the possible connection to reoffending, and costs to the taxpayers of incarcerating defendants” unless the government follows strict procedures outlined below.

The California Constitution carefully describes the circumstances where pretrial detention is appropriate – felony offenses involving threats, violence, or sexual assault, where a judge finds there is: 1) strong evidence of likely guilt after a full-blown adversarial hearing; and 2) that release would pose a danger. Posing such a danger sufficient for detention must also mean, the Court made clear in Humphrey, that there are no other less restrictive alternatives that could reasonably mitigate that danger and assure the accused’s return to court.

But, until now, California courts have often locked people up pretrial, even when only charged with misdemeanors or nonviolent offenses, if they could not pay a financial condition of pretrial “release.” For example, Mr. Kowalczyk, who was unhoused, used a credit card he found on the floor to buy a cheeseburger at Five Guys. He was charged with felony identity theft, then jailed on $75,000 money bail. When he challenged his detention under Humphrey, the court responded by detaining him without bail. That was unconstitutional, the Supreme Court held. Courts must decide whether to detain people based on whether they are dangerous and whether their detention complies with the state constitution, not whether they can make a payment. While judges are free to use money bail if they find it necessary to encourage a person to appear in court, it must be affordable, not a means to detain. These strict procedures, affirmed in Kowalczyk, thus closed a loophole in California law that for many years enabled prosecutors and courts to accomplish detention by using unaffordable money bail without complying with the longstanding procedures required for a transparent order of pretrial detention.

Civil Rights Corps developed and pioneered the legal theories in this case and has litigated hundreds of similar cases in California for nearly a decade. CRC also represented Mr. Kowalczyk in the Court of Appeal and then again as a lead amicus in the California Supreme Court.