Law limiting bail is clear. Will judges still ignore it?

Pretrial liberty is meant to be the norm. Let's ensure the presumption of innocence means something.

- CHESA BOUDIN GUEST CONTRIBUTOR

BAIL BOND companies' signs next to the Twin Towers Correctional Facility in Los Angeles.

(MARIO TAMA Getty Images)

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.”