Thursday’s ruling by the California Supreme Court set new limits on judicial authority to hold defendants in jail while awaiting trial.
Colin Peck/Special to The Chronicle
People charged with crimes in California must be granted bail in amounts they can afford unless they are accused of capital offenses, or face serious charges and pose a threat of violence if released, the state Supreme Court ruled unanimously Thursday. Lawyers said the decision could affect thousands of cases.
The court ruled in 2021 that judges in most cases must consider a defendant’s ability to pay before setting bail. But that ruling “has been widely flouted” by judges in many counties, said attorney Avram Frey of the American Civil Liberties Union, who filed arguments in the current case. Defense attorneys argued many judges continued to set bail in unaffordable amounts even for defendants charged with misdemeanors punishable by no more than a year in jail. Thursday’s ruling set new limits on judicial authority to effectively hold defendants in jail while awaiting trial.
Except for those charged with capital murder or violent felonies, “bail must be set in an amount reasonably attainable for the defendant,” Chief Justice Patricia Guerrero wrote in the 7-0 decision.
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Responding to concerns by police and prosecutors that defendants charged with lesser crimes could still pose dangers or flee if released on bail, Guerrero said other safeguards, “such as ankle monitoring bracelets and court-ordered check-ins, suffice to ensure public safety and the defendant’s appearance at trial.”
Legislation signed by Gov. Jerry Brown in 2018 would have made California the first state to abolish cash bail, a law that would have required quick release of defendants charged with lesser crimes while denying pretrial release to capital murder defendants and those with recent convictions for serious or violent crimes. But the law was put on hold by a ballot measure sponsored by bail bond companies, and more than 56% of the voters rejected the legislation in 2020.
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While signing Guerrero’s lead opinion, Justice Joshua Groban, joined by Justices Goodwin Liu and Kelli Evans, said in a concurrence that those who are released before trial, with or without bail, “have significantly lower rates of conviction” than those held in jail.
Marsanne Weese, the defense lawyer in Thursday’s ruling, said it would have “a significant and immediate impact on trial courts and thousands of incarcerated individuals throughout the state.”
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Her client, Gerald Kowalczyk, was charged with using someone else’s credit card to try to buy a $7 cheeseburger at a fast-food restaurant in San Mateo. A homeless man with more than 60 prior convictions, mostly for low-level crimes, he was initially held on $75,000 bail, then pleaded no-contest to misdemeanor identity theft after spending six months in jail.
While the court’s ruling has no direct effect on Kowalczyk, Guerrero said judges in such cases must “set bail in an amount that is consistent with, and designed to effectuate, a defendant’s general right to pretrial release.”
San Francisco District Attorney Brooke Jenkins filed arguments supporting courts’ authority to deny bail in a broad range of cases, although she said her office does not seek to hold most defendants on bail.
The court “should recognize that the voters” in a prosecution-sponsored ballot measure, Proposition 9 of 2008, “intended to provide trial courts with the ability to deny bail, should pretrial detention be necessary, regardless of the underlying criminal offense charged,” Assistant District Attorney Nicholas Hunt wrote in the filing.
But the court said Prop 9 did not change the law that allowed denial of bail only for those who are charged with serious felonies and pose a danger of violence if released. In all other cases, Guerrero said, a judge who requires bail for pretrial release must consider the defendant’s financial resources.
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“This does not mean that bail may only be set in an amount that is easily affordable or convenient to the defendant, or that the court must accept unsupported, conclusory assertions of indigency or an inability to pay,” the chief justice wrote. But she said the amount must be “reasonably attainable.”
The case is In re Kowalczyk, No. S277910.