California
Contributor: California law limiting bail is clear. Will judges keep ignoring it?
Gerald Kowalczyk tried to buy a hamburger with credit cards he found on the floor. Then, while presumed innocent, he spent months in a California jail — not because a judge determined he was dangerous, not because he threatened anyone, but because the court set bail at $75,000 for a man who couldn’t afford it, then simply denied bail altogether, in defiance of the law. Last week, the California Supreme Court unanimously said no more. The court held that pretrial liberty is the norm; incarceration before conviction for any crime is the rare, carefully limited exception. If courts choose to condition freedom on a monetary payment it “must” be “an amount that is reasonable.”
For years, California courts ran an unconstitutional shadow detention system. The mechanics were straightforward: Set bail at an amount the defendant cannot pay and the result is the same as ordering detention outright. As the court explained in its Kowalczyk ruling, pretrial detention requires strong evidence of a serious charge and “clear and convincing evidence establishing a substantial likelihood that the defendant’s release would result in great bodily harm to others.” Instead, as Justice Joshua P. Groban explains in concurrence, courts have used money bail to detain poor people accused of nonviolent offenses with “devastating repercussions for their employment, education, housing, access to public benefits, immigration status, and family stability.”
This wasn’t a bug. It was the system.
Last week’s ruling closes that loophole — unambiguously and unanimously. Courts can no longer use unaffordable bail as a backdoor detention order. Where detention isn’t authorized, bail must be set at an attainable amount, based on the defendant’s actual circumstances. The ruling builds directly on the Humphrey precedent from 2021, a California Supreme Court decision that first held wealth-based detention unconstitutional and a case I helped bring.
I know how hard these victories are to win. I also know how easily they can be ignored.
Even after Humphrey was decided, across Santa Clara, San Mateo and Alameda counties, judges asked about a defendant’s financial circumstances exactly once out of nearly 250 observed cases. In more than 95% of hearings, judges cited no legal standard at all when ordering detention. More than 90% of people jailed pretrial were charged with offenses that didn’t even qualify for detention under the California Constitution: shoplifting, driving without a license, vandalism. These findings came from Silicon Valley De-Bug, a community organization whose members spent years watching what happens in arraignment courtrooms.
The system didn’t follow the rules set out in Humphrey. We must ensure the system makes good on the unanimous ruling in Kowalczyk.
Start with public defense. California is one of just two states that contributes no funding to trial-level public defense, leaving the 58 counties with no state standards or oversight. The result is a patchwork of wildly unequal and inadequate representation. Last week’s ruling requires courts to make individualized findings about flight risk, public safety, alternative release conditions and ability to pay — which means defense attorneys must be present at or before arraignment, prepared to make ability-to-pay arguments, demand findings and challenge unaffordable bail on the record. In counties where public defenders carry caseloads of 100 or more, that is not happening. It cannot happen without resources.
Then there is the question of alternatives. The ruling requires judges to consider conditions of release — drug treatment, check-ins, social services referrals, in serious cases ankle monitoring — before resorting to money bail or detention. But these options exist only where counties have invested in pretrial services outside of law enforcement, programs such as San Francisco’s Pretrial Diversion Project. Most haven’t. A constitutional right to alternatives is hollow without alternatives for judges to choose from.
Finally, the Judicial Council, which makes policy for California courts, should establish monitoring standards, reporting requirements and training protocols that ensure courts no longer impose unnecessary or unconstitutional pretrial incarceration.
Kenneth Humphrey spent 250 days in jail for $5 and a bottle of cologne. Gerald Kowalczyk spent months inside for a hamburger. Behind each of them are tens of thousands of Californians who spent similar time behind bars unjustly, who lost jobs and homes and custody of their children, because the system treated their poverty as grounds for imprisonment.
The Supreme Court has now said clearly what our Constitution has since 1849: Pretrial liberty is the norm. Pretrial detention is the carefully limited exception. There is a good reason for the presumption of innocence: 1 in 3 California arrests does not lead to any conviction, and upending people’s lives by jailing them pretrial is so destabilizing it actually increases future crime.
Let’s ensure this presumption of innocence means something in practice if you, or your loved one, need it.
Chesa Boudin is the former district attorney of San Francisco and the executive director of the Criminal Law & Justice Center at UC Berkeley School of Law.
California GOP delegates Roxanne Hoge and Elizabeth Barcohana join Trace Gallagher to discuss multiple issues impacting California.
California GOP delegates Roxanne Hoge and Elizabeth Barcohana dissect the state’s pressing issues with Trace Gallagher. They criticize the SF Giants’ ‘Pride Night’ controversy and players’ right to religious expression. The delegates also discuss Los Angeles’s economic decline and Sacramento’s expensive homeless campsite, highlighting concerns about over-regulation and social issues. They conclude by addressing California’s large-scale Medicaid fraud, suggesting a lack of accountability.
Oakdale’s first Pride event is moving forward this weekend after organizers changed venues following pushback over its original location and a planned drag performance.
Some residents pushed back over the event’s original location at Dorada Park and a planned drag performance.
“I also understand staff has issued a permit for a so-called Pride event,” one speaker said during the latest City Council meeting.
Another speaker raised concerns about the event being advertised as open to all ages, including children, and having a drag queen host.
After the public pushback, organizers moved the event indoors to the Bianchi Center.
“It was a huge upgrade to be able to provide a more accessible space in the heart of Oakdale,” said Ryan Hall, president of CalPride.
Hall said the idea to bring Pride to the city did not come from outside Oakdale, it came from people living there.
“That’s my place as a mom of rainbow kids, absolutely,” said Elizabeth May, owner of Sisters Coffee.
May’s coffee shop hosts a monthly LGBTQ+ social.
“I had a young man walk in here and say, ‘We don’t have anywhere to have a social here for LGBTQ.’ I said, ‘Heck yes,’” May said.
Still, the backlash has left parents like May concerned.
“How does it feel? Scary. I’m excited, but as a mom of a kid in the community, I’m nervous for them,” May said.
May said the venue change helped ease some of the tension.
“The different venue made a win-win situation for everyone. I was very proud of the kids for making that hard decision,” May said.
For organizers, the drag performance is part of the celebration.
“Enjoy some line dancing, enjoy some live music, enjoy the drag show, and then also enjoy community members and our local businesses, our local artists and partner organizations,” Hall said.
Oakdale Pride is scheduled for Sunday from 10 a.m. to 2 p.m. Entry is free.
California Gov. Gavin Newsom, a Democrat who is considering a run for president as he approaches the end of his term, called for a national “billionaires’ tax” on Friday even as he fights another proposal targeting the wealthy in his home state.
Newsom also said the U.S. government should own a stake in artificial intelligence companies. His proposals, outlined in a Substack post, aligns him with the Democratic Party’s populist left, and he argued that urgent changes are needed to prevent the elite concentration of wealth and power from undermining democracy.
“It’s time for an economic reset for America,” Newsom wrote.
The governor announced his agenda a day after an influential health care union in California pledged to go forward with a ballot measure that would impose a one-time 5% tax on the assets of billionaires living in the state as of Jan. 1, 2026.
Newsom opposes that measure, as do many of the liberal interest groups that typically favor higher taxes. They fear it would drive billionaires out of California, eroding the state’s tax base over the long term for a one-time influx of cash. A technology mecca, California has more billionaires than any other state — a few hundred, by some estimates.
“You may not be able to pick up and move to Texas or Florida to shelter your income from taxation, but I promise you that billionaires can, and do,” Newsom wrote. “Wealth is movable, and it shops for the state with the lowest taxes. The fight belongs at the federal level, where this broken system was created in the first place.”
A minimum tax on large net worths
Newsom said the solution is a new national tax policy, rather than a state-by-state system. He proposed a minimum tax on anyone with a net worth above $100 million. He also wants to make it illegal for the wealthy to borrow against their stock portfolios to fund their luxury lifestyles tax free.
Newsom said there should be new rules for inheritance taxes, warning that “the transfer of wealth among the ultra-wealthy will lock in a permanent American aristocracy of inherited wealth.” And he wants to raise corporate tax rates to where they were before President Donald Trump’s first-term tax cut.
READ MORE: Sanders and Newsom clash over proposed tax on California’s billionaires
The need is especially urgent as artificial intelligence threatens to displace workers and further concentrate wealth, he wrote.
“We need to ensure every American owns a stake in the future being built by AI through a national public equity fund that takes a major stake in the new economy,” he wrote. “Simply, as artificial intelligence reshapes the country, every American should own a piece of the future it builds.”
Revenue generated by his proposals could be used to retrain workers, fund universal child care, make college free and increase funding for health care.
‘Money buys influence’
Newsom, who has drawn attention as one of Trump’s most high-profile political antagonists, is getting an early start on laying out a policy framework for his potential White House bid months before the midterm elections, which have typically marked the informal start of overt presidential campaigning.
WATCH: News Wrap: Newsom says Trump ordering DOJ to investigate him and wife
The embrace of a wealth tax by Newsom, a moderate on tax policy despite his liberal reputation, signals a notable shift in the political landscape since Massachusetts Sen. Elizabeth Warren struggled to get traction in her 2020 campaign, which she largely centered around a 2% levy wealth tax.
Newsom portrayed the nation’s tax code as a corrupt system built to help an elite few.
“Money buys influence, and influence rewrites the rules,” he wrote. “Those rewritten rules funnel even more wealth to the few. Under this weight, democracy itself starts to buckle.”
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