The California Supreme Court has delivered a major constitutional reminder to trial courts: bail means release. It does not mean detention disguised as a number.

In In re Kowalczyk, the Court confronted a practice that has long infected California criminal courts: setting bail so high that the accused cannot possibly pay it, while pretending that the person technically still has a path to release. The Court rejected that fiction. If bail is set at an amount that is objectively unattainable, then it is not functioning as bail. It is functioning as detention.

That distinction matters because California’s Constitution does not allow courts to detain people before trial whenever they feel uncomfortable releasing them. Pretrial liberty remains the constitutional norm. Detention is the exception.

And after Kowalczyk, courts can no longer use unaffordable bail to evade that rule.

The Case Started With a Hamburger, Not a Homicide

The facts of Kowalczyk are almost absurd when compared to the size of the constitutional issue the case produced.

Gerald Kowalczyk entered a fast-food restaurant and attempted to buy a hamburger using multiple credit cards, several of which belonged to people who had lost them. After several cards were declined, one card was approved. He received the hamburger, then sought a refund, which the manager refused. He left without the hamburger and was later arrested.

The prosecution charged him with felony identity theft and related offenses. At arraignment, the trial court denied release on his own recognizance and set bail at $75,000.

Kowalczyk argued that he was indigent, did not pose a danger to the community, and presented little flight risk. The prosecution emphasized his long criminal history and argued that nonfinancial conditions would not be sufficient. The trial court then went beyond the original bail amount and denied bail altogether.

That ruling raised two major constitutional questions.

First, when can bail be denied in a noncapital case?

Second, can a court set bail above a defendant’s ability to pay?

The California Supreme Court’s answer to both questions was a significant win for constitutional liberty.

California’s Constitution Protects the Right to Bail

California has recognized a constitutional right to bail since 1849. That right is now found in article I, section 12 of the California Constitution, which provides that a person “shall be released on bail by sufficient sureties,” subject to specific exceptions.

For noncapital cases, those exceptions are limited. A court may deny bail only in certain serious felony cases involving violence, felony sexual assault, or threats of great bodily harm, and only when the court makes the required findings by clear and convincing evidence.

That is not a casual standard. It is not enough for a prosecutor to say the defendant has a bad record. It is not enough for a judge to feel uneasy. It is not enough to rely on generalized concerns about public safety.

The Constitution requires a specific legal basis and a specific evidentiary showing.

The prosecution in Kowalczyk argued that another constitutional provision, article I, section 28(f)(3), part of Marsy’s Law, gave courts broader power to deny bail because it states that a person “may” be released on bail and requires public safety and victim safety to be primary considerations.

The Supreme Court rejected that argument.

The Court held that section 12 and section 28(f)(3) can be harmonized. Section 12 defines when bail may be denied. Section 28(f)(3) requires courts to consider public safety and victim safety when making bail decisions. But section 28(f)(3) does not silently erase the historic right to bail or expand the categories of cases where pretrial detention is allowed.

That holding is critical. It prevents public-safety language from becoming an all-purpose constitutional escape hatch.

Public Safety Matters, But It Does Not Cancel the Constitution

The Court did not minimize public safety. It expressly recognized that protecting the public and protecting victims are legitimate and important concerns.

But constitutional rights are not defeated by slogans.

If the prosecution believes a defendant must be detained, it must proceed under section 12 and satisfy the required standard. If the defendant does not fall within section 12’s detention categories, the court must consider release conditions.

Those conditions can be serious. Courts can impose stay-away orders, electronic monitoring, GPS restrictions, search conditions, check-ins, curfews, drug testing, treatment obligations, surrender of travel documents, and other tailored conditions.

The point is not that every defendant must be released without restriction. The point is that courts must use lawful tools, not fake bail.

A judge cannot avoid the constitutional limits on detention by setting bail at an amount the defendant cannot pay.

Unaffordable Bail Is Detention by Another Name

The most important part of Kowalczyk is the Court’s treatment of unaffordable bail.

The Court held that when a defendant is not eligible for detention under section 12, and the court determines that monetary bail is necessary, bail generally must be set in an amount that is reasonably attainable based on the defendant’s individual circumstances.

That does not mean bail must be easy. It does not mean bail must be convenient. It does not mean courts must accept unsupported claims of indigency.

If the court sets bail at an amount that everyone knows the defendant cannot possibly pay, then the court has not created a meaningful condition of release. It has created a detention order without calling it one.

That is precisely what Kowalczyk forbids.

The Court’s reasoning follows the logic of In re Humphrey, where the California Supreme Court previously held that courts violate due process and equal protection when they detain people solely because they cannot afford bail. Humphrey required courts to consider ability to pay and less restrictive alternatives. Kowalczyk gives that principle teeth.

A court must now make a real individualized assessment. It must consider the defendant’s financial situation, the seriousness of the offense, criminal history, risk of nonappearance, public safety, victim safety, and whether nonfinancial conditions can reasonably address the relevant risks.

The old shortcut, pick a high number and call it bail, is no longer constitutionally acceptable.

The Decision Exposes the Cruelty of Money Bail

Money bail has always produced two systems of justice.

A person with money buys freedom. A poor person stays in jail.

The charge may be the same. The alleged conduct may be the same. The risk may be the same. But the outcome turns on wealth.

That is not justice. That is economic sorting.

Pretrial detention also creates enormous pressure to plead guilty. A person sitting in jail may lose a job, housing, custody rights, medical care, education, and the ability to assist in the defense. Even an innocent person may plead guilty just to get out.

That is why unaffordable bail is so dangerous. It punishes before conviction. It pressures pleas before trial. It turns poverty into incarceration.

Kowalczyk recognizes that the constitutional right to bail must mean something more than the theoretical right to pay an impossible amount of money.

Trial Courts Must Now Do the Work

After Kowalczyk, bail hearings should become more rigorous.

Defense lawyers should demand findings. Prosecutors should be required to identify the specific constitutional basis for detention if they seek detention. Courts should address nonfinancial alternatives on the record. And when money bail is imposed, courts should explain why the amount is reasonable in light of the defendant’s actual financial resources and the purposes of bail.

Bail schedules alone should not decide liberty. Assumptions should not decide liberty. Poverty should not decide liberty.

The court must conduct an individualized analysis.

That is the constitutional core of the decision.

A Warning to Prosecutors and Judges

Kowalczyk also sends a direct message to prosecutors and judges who have become accustomed to using high bail as a preventive detention tool.

If you want detention, seek detention lawfully.

Do not disguise detention as bail.

Do not use an impossible number as a substitute for findings.

Do not transform public-safety concerns into a blank check to jail people before trial.

The Court made clear that California’s Constitution already contains a detention framework. Courts must use that framework. They cannot create a broader one by manipulating bail.

Final Word

In re Kowalczyk is one of the most important California bail decisions since In re Humphrey.

It confirms that pretrial liberty is not a luxury item. It is not reserved for people with money. It is not something courts may deny by setting a number too high to reach.

The decision restores the basic meaning of bail: a mechanism for release, not a mask for detention.

If the Constitution allows detention, the court must say so and make the required findings. If the Constitution does not allow detention, the court cannot achieve the same result by imposing unaffordable bail.

That is the rule after Kowalczyk. And it is a rule California courts should have been following all along.