*IMPORTANT UPDATE IN BAIL PROCEDURES*
On April 30, 2026, the California Supreme Court issued a decision in In Re Kowalcyzk further reforming bail procedures in the State. The link to the decision along with a short synopsis is below.
This decision holds that unless an accused is charged with one of the limited offenses listed in Article I, Section 12 of the California Constitution, he or she cannot be held without bail. Those offenses include capital cases, felony acts of violence on another person where the accused’s release is likely to result in great bodily harm to another, sexual assault, and felony threats of violence where the accused is likely to carry out the threat of great bodily harm.
The Court went on to hold that in all other offenses, bail cannot be set in an amount that is unattainable by the accused resulting in a “de facto detention”. However, this is being interpreted by courts throughout the state, to mean that an accused must be released on his/her own recognizance if he/she cannot afford to post bail.
The Kowalcyzk case did place the burden of showing such inability to pay on the defendant, however we have not seen those measures yet incorporated.
What does that mean for our local communities? Well, to put it plainly, it means that you will likely see offenders be released mere hours after arrest for crimes such as residential burglary, firearm usage, felony DUI, child abuse, drug sales, stalking, and even domestic violence, without posting bail or without any court-ordered pre-trial supervision.
Our office disagrees with the broad interpretation of this decision. We continue to take the position that courts CAN still set bail in all cases, but agree that they must do so in an amount that is attainable by the defendant. It is also our position that there is a difference between an inability to post bail and an inability to afford an attorney.
For example, we have a defendant being charged with new felony charges, who is out on bail in FOUR felony (non-violent) cases. This person has been able to post bail in these four prior cases at amounts varying around $25,000 each. This person qualifies for representation by a court-appointed attorney. However, this person’s inability to afford an attorney should not be considered the same as their inability to post bail.
Custodial status of an accused is determined by a judicial officer, not the law enforcement agency who made the arrest and not the District Attorney. We can only take a position on bail, but we do not set the amount or issue the release of a defendant.
Our office will continue to maintain the position that – in cases where warranted – bail should be set at an amount to 1) protect the safety of the community or a particular crime victim, and 2) ensure the defendant’s appearance in court.
The factors we look at when asking for bail to be set include but are not limited to the nature of the current offense, the defendant’s prior criminal history, the defendant’s propensity to fail to appear for court, and whether there are any less-restrictive means to keep the community/victim safe from the defendant and to ensure the defendant’s appearance in court.
Thank you for reading.
