In In re Kowalczyk, the Supreme Court last week built on its landmark In re Humphrey (2021) 11 Cal.5th 135 decision (see here), holding that there are only a limited number of constitutionally specified circumstances in which a court may deny a criminal defendant bail and that bail, when set, must generally be in an amount “reasonably attainable” to the defendant.
All justices signed the opinion by Chief Justice Guerrero, but four justices concurred in two separate opinions. The court’s opinion reconciled the somewhat disparate and separately enacted sections 12 and 28(f)(3) of the State Constitution’s article I, a task the justices sidestepped in Humphrey (see here).
The court held the later enacted section 28 didn’t repeal section 12’s guarantee of a right to release on bail except in the cases expressed in section 12 (certain capital crimes, violent felonies, and felonies when the defendant has threatened great bodily harm). It also concluded that, in considering “the defendant’s financial situation and the totality of other circumstances,” a court “cannot use artificially high or objectively unattainable bail as an end run to effectuate pretrial detention where such detention is not authorized under section 12.” And that is when bail is a condition of pretrial release at all. “As a threshold matter,” the opinion states, “a court must determine whether monetary bail is reasonably necessary, as in many instances, nonfinancial alternatives, such as ankle monitoring bracelets and court ordered check-ins, suffice to ensure public safety and the defendant’s appearance at trial.”
Justice Groban, joined by Justices Liu and Evans, filed a separate concurrence to make two points: first, that “section 12 provides sufficient latitude for courts to order the pretrial detention of those who would pose a clear danger to victims or the public if they were released” and, second, that “as to those who are not subject to detention under section 12, courts may impose pretrial release conditions designed to protect public and victim safety and guard against flight risk.”
Pro tem Justice Wiley’s concurring opinion said the court’s “decision invites a legislative and executive response,” because, for “large state issues, [those] branches have tremendous advantages over the judiciary.”
The court affirmed the First District, Division Three, published opinion, but only to the extent it dismissed the habeas corpus petition as moot. Otherwise, the court “disapprove[d] of its reasoning to the extent it is inconsistent with this opinion.”
