In summary
A homeless man was arrested after using stolen credit cards to buy a meal and then spent six months in a Bay Area jail. His case triggered a debate over expensive bail.
The California Supreme Court held Thursday that judges should take someone’s financial circumstances into account when setting bail, a ruling that gives courts some flexibility to jail indigent defendants before trial.
The case turned on a $7 cheeseburger purchased with another person’s credit card. The person charged with theft spent six months in jail on a bail he couldn’t afford.
While his case was resolved long ago, the court decided to take up the constitutional questions arising from his incarceration and inability to pay his way out.
Two articles in the California Constitution were potentially in conflict: a defendant’s right to be released on bail except for certain violent or sexual crimes, and a separate article created by the 2008 ballot measure that instructs judges that “public safety and the safety of the victim shall be the primary considerations” in setting bail amounts. The question before the high court was whether they could harmonize.
The court found, unanimously, that they could.
The ballot measure and ensuing law “already provide courts with significant latitude to order the detention of dangerous defendants,” Chief Justice Patricia Guerrero wrote. “We are unable to disregard this framework merely because (prosecutors) would prefer a more expansive authority to detain individuals charged with offenses beyond those set forth in” the ballot measure.
The decision noted that voters are free to create a new bail system — while a concurring opinion essentially begged for the matter to be resolved by the governor or the Legislature.
The court said its decision affirms a “reasonableness analysis” when judges set bail that considers “the totality of the circumstances” of the defendant.
The case in question involved the six-month jail stay of Gerald Kowalczyk, who used credit cards he found to buy a $7 cheeseburger in January 2021. Kowalczyk had more than 60 convictions and a history of failing to adhere to his release conditions. A pretrial algorithm gave him the highest risk score possible.
Prosecutors noted his history of noncompliance with court orders and asked for him to be held on a pricey bail. A San Mateo Superior Court judge set his bail at $75,000, an amount Kowalczyk, homeless and unemployed, could not pay.
The case bounced between the 1st District Court of Appeal in San Francisco and the Supreme Court until Thursday’s decision.
In a concurring opinion, Justice Joshua Groban said prosecutors had urged the court to interpret the law in a way that allows judges to set “unattainable bail” for defendants who are not charged with violent or sexual crimes.
“But as today’s opinion makes clear, this practice, however common and longstanding it may be, is generally inconsistent with the constitutional right to pretrial release and with principles of equal protection and due process,” Groban wrote.
“Out of the thousands of detention and bail determinations being made every week in our trial courts, the district attorneys’ hypotheticals concern a small and atypical subset: cases in which the defendant is not accused of any act of violence or sexual assault, or even accused of threatening violence, but still poses such a serious and imminent threat to public safety that there are no pretrial release conditions that could adequately mitigate this threat.”
A far shorter concurrence from 2nd District Court of Appeal judge John Shepard Wiley Jr. got right to the point: “Today’s decision invites a legislative and executive response. I hope the invitation is accepted.”
Wiley has a temporary appointment to the California Supreme Court following the retirement of Associate Justice Martin Jenkins.
Voters by referendum rejected a proposition that would have eliminated the cash bail system in 2020.
Further complicating the issue is a 2021 California Supreme Court decision that forbids judges from setting bail amounts higher than what a defendant can pay, unless the defendant is a danger to the public or unlikely to show up for court.
That decision did not immediately end cash bail for indigent defendants, a UCLA School of Law review found in late 2022. In fact, the authors said, many judges interpreted the decision to mean that they have even more authority to hold people without bail.
