In a recent memo to the region’s law enforcement, the District Attorney’s Office warned that a new ruling from the California Supreme Court means officers should expect to see more people released from custody within days of an arrest.
For most defendants charged with a crime — except for those accused of capital murder or violent crimes and threats of violence — bail will not be required, the memo explained.
“What this means for law enforcement is the majority of suspects will be released from custody pending resolution of their case,” it reads.
Courts have begun implementing the new standard since the ruling came down at the end of April, though it’s still too soon to say what the effect has been in San Diego County.
The ruling follows a broader shift toward rethinking the purpose of cash bail, mirroring larger criminal justice reforms in the state over the past decade or more. Advocates have long argued that keeping people accused of nonviolent crimes in jail because they are poor is fundamentally unfair and destabilizing — consequences can mean lost jobs, lost housing. Others fear the shift toward pretrial release from custody will affect public safety.
For now, authorities are closely watching how the changes will play out in the county. There are already anecdotal indications of more indigent people being released without bail and more defendants signing up for court-ordered supervision, although county officials underscore that they cannot draw a correlation between that and the April decision.
Bail changes
The decision, In re Kowalczyk, arises from a 2021 San Mateo County case of a man who used someone’s lost credit card to buy a hamburger. After his arrest, the court set his bail at $75,000. When he sought lower bail, the court — noting the man had 64 prior convictions and had failed to comply with pre-trial supervision for the previous five years — denied bail altogether, according to the opinion. Months later, the man pleaded no contest to one count of misdemeanor identity theft and was released from custody, time served. But the state’s high court agreed to review the matter to clarify a legal question regarding bail in California.
Civil Rights Corps supervising attorney Salil Dudani, who was part of the team that represented Gerald Kowalczyk before a court of appeal, said the high court’s ruling “clarifies that unaffordable money bail is unconstitutional, which makes sense because people shouldn’t be jailed just because they can’t make a payment.”
The California Constitution states that a person shall be released on bail by sufficient sureties, save for two situations: capital murder or serious felonies involving acts of violence, felony sexual assault or a threat of great bodily harm.
A 2018 state Supreme Court ruling held that detaining defendants solely based on financial condition violates equal protection rights, and the opinion pushed judges to consider a defendant’s ability to pay, as well as to determine whether there are less restrictive options than custody. The new ruling takes that a step further, underscoring that bail is not required. Essentially, only those charged with crimes in the two situations above should be held without bail before trial.
For everyone else, less restrictive remedies than custody, such as a GPS monitoring ankle bracelet, should be considered or exhausted. And if bail is set, the high court found, it cannot be “artificially high or objectively unattainable bail as an end run to effectuate pretrial detention.”
The ruling means prosecutors have a higher bar to argue to keep someone in custody. Last month’s memo to law enforcement — such briefs are not uncommon for the prosecutor’s office to send — asked arresting officers and investigators to quickly flag prior police reports that tend to show a defendant’s pattern of violence or danger to others.
Prosecutors say that before a person accused of violent crimes can be held without the ability to post bail, a judge must find the three following conditions by “clear and convincing evidence”: the evidence of guilt is strong; if released, the person is substantially likely to seriously injure someone; and no less restrictive option — such as GPS monitoring — offers sufficient protection and ensures the person will return to court.
Everybody else may be released on attainable bail or on their own recognizance with conditions attached.
Prosecutors face hurdles
District Attorney Summer Stephan — who said she accepts the ruling and is not criticizing the high court or its interpretation of the state Constitution — said that her office has “a duty to protect the community.”
“We are doing our very best to make the legal arguments that they’ve allowed under the law to protect the community and to protect victims,” she said. “But there certainly has been an impact that at times is very, very worrisome for victims.”
She said people accused of, say, home burglaries, repeat felony thefts, investment fraud, elder scams — all considered nonviolent — are all entitled to attainable bail. “We don’t even have a chance to detain them,” she said.
Prosecutors seeking to detain such defendants have “many hurdles” to overcome, she said.
In cases of felony acts or threats of violence, prosecutors have to show that, if released, the defendant is substantially likely to cause great bodily harm to someone else. “Hard to have a crystal ball on that,” she said. Also “very challenging,” she said, is showing that there is no less restrictive option than custody to adequately protect the public and the victim and ensure the defendant returns to court.
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Critics of cash bail argue that it does not protect the public. Civil Rights Corps attorney Dudani said keeping a person in jail pretrial has been proven to increase crime because it is so destabilizing. “That’s why it’s important that pretrial detention be limited to the serious cases where it’s been actually shown it wouldn’t be safe to release a person,” Dudani said.
Nor does cash bail guarantee a person will return to court. “It has been studied over and over again,” Dudani said, “and each actual academic study reaches the same conclusion that money bail does not increase appearances in court.”
University of San Diego School of Law professor Justin Brooks, who is renowned for his work exonerating innocent people convicted of crimes, said studies show that “there hasn’t been this boost in crime in the jurisdictions that have done bail reform.” And without reasonable bail, he said, defendants “are just being kept in jail because they’re poor.”
“It shouldn’t be that people who have money will buy their way out of jail, and people who don’t have money don’t have the opportunity to do that,” he said.
Retired Tulare County Judge Brett Alldredge, who writes and speaks on the topic of felony pretrial matters, said the right to release is in the state Constitution. He also said the idea that judges “let people out” of jail is “absolutely not true.”
“A judge no more lets somebody out than they let somebody have a First Amendment or Second Amendment right,” he said. “Those rights are already established.”
Initial impressions
Deputy Public Defender Joahna Fredericksen-Aguilar, who handles the arraignment calendar at San Diego Central Courthouse, said the high court’s decision “provides clarity that was for a long time lacking. I think there is a real benefit to our entire judicial system.”
“I think what you are seeing now on the ground in San Diego as well as from what I’ve heard in other counties is greater uniformity, greater consistency in terms of how detention, bail and release decisions are being made by the judges,” Fredericksen-Aguilar said.
All the clients of the Public Defender’s Office are indigent, Fredericksen-Aguilar said, and most cannot afford any substantial bail.
The defense attorney is seeing more clients ordered to be released. “I would say that we’ve seen approximately twice as many people released in the first few months as a percentage of overall felony arraignment cases. But whether that trend continues long term remains to be seen.”
On the flipside, Fredericksen-Aguilar is also seeing an increase in the number of people being held without bail.
The county’s Probation Department appears to have had a jump in the average number of people each week newly placed under its supervision while out of jail awaiting trial, although its spokesperson cautioned that the office doesn’t know if that is a result of the court ruling.
Between January and April, the months before the ruling, the average number of intakes of people being newly placed on what is called “supervised own recognizance” came in roughly around 90 new people a week, county spokesperson Chuck Westerheide said.
In May, Westerheide said, the average number jumped to roughly 150 new people placed on supervision each week. Through July, the average number ticked up to about 160. The first week of August, the spokesperson said, it was almost 175 new people.
Sheriff’s Capt. Chris Katra has been tasked with keeping track of incidents of people who are released from pretrial custody and soon rearrested. He said it’s too early to get a read.
“Being out of custody while you are accused of a crime is the norm now,” the sheriff’s captain said.
Katra said that nothing has changed in terms of arresting people. “What was illegal before is still illegal,” he said.
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