Did the California Supreme Court Just “Remake” the State’s Bail System...Hardly

In a recent article entitled, Did the California Supreme Court Just Remake the State’s Bail System, the Marshall Project makes the case that a new ruling by California’s Supreme Court will remake the state’s bail system.  In usual fashion, The Marshall Project just might be making a mountain out of a molehill.  The unanimous decision is potentially far less transformative than reform advocates claim. It largely reaffirms and clarifies the principles the Court already established in its 2021 In re Humphrey decision: judges cannot use unaffordable cash bail as a backdoor way to detain people solely because they are poor. The new opinion stresses that bail must generally be set at an amount that is “reasonably attainable” given the totality of the circumstances, while still allowing courts flexibility to protect public safety and ensure court appearances. In other words, just follow the law, like we have been for the past 5 years. Hardly a game changer.

California judges have been required since Humphrey to balance three key factors when setting bail: public safety, flight risk, and the defendant’s actual financial ability to pay. They routinely conduct individualized assessments to arrive at an amount calculated to incentivize the defendant to return to court—high enough to matter for someone with a long criminal history or high pretrial risk score (like Gerald Kowalczyk, who had more than 60 prior convictions and scored in the highest risk category), but not so artificially inflated that it becomes punitive detention for indigency. The Kowalczyk ruling explicitly notes that bail need not be “easily affordable or convenient,” reinforcing that judges retain discretion to set meaningful conditions. In short, the decision codifies what responsible trial courts were already doing.  The reality is that the Marshall Project and other bail reform advocacy groups just don’t like that judges are using their discretion in the way that they are.  They would rather see every defendant released for free with no accountability.  To them…that is fairness…that is justice.

Experience tells us that this ruling is unlikely to produce the “seismic” shift advocates predict. Multiple studies tracking Humphrey—including a comprehensive 2024 UCLA/Berkeley report titled “Largely Unchanged”—found no measurable reduction in California’s pretrial jail population, no drop in median bail amounts across counties, and no shortening of average pretrial detention times. Judges continued to set appropriate bail while nominally considering ability to pay; the system largely kept operating as before. The same pattern is likely here. Meanwhile, decades of empirical research (including the six leading pretrial studies from BJS, peer-reviewed journals, and county-level analyses) consistently show that financially secured surety bonds achieve the lowest failure-to-appear rates and best fugitive recovery precisely because they create real incentives for defendants, bondsmen, and sureties alike. Weakening those incentives without strong alternatives risks higher no-shows, more court delays, and greater danger to the public—outcomes California can ill afford.

The reality is that the bail system in California operates very effectively.  Bail reform advocacy groups like the Marshall Project have been actively trying to promote bail reform and eliminate bail in the state for decades.  But California voters do not want to eliminate bail.  They overwhelmingly voted to keep bail in 2020 when over 56% of voters voted “No” on Proposition 25. So, will this ruling change how California judges approach bail setting any more different than they already do? We will just have to wait and see.