By admin 
Sheree White was shuffled into the San Mateo County courthouse on the morning of Friday Aug. 9 after her surprise arrest the night before. A single mother with no criminal record, her bail was set at $10,000.
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White had two options. Fork over half her monthly income and walk free until her next court date, or spend anywhere from a few days to six months in jail — possibly forfeiting her job, housing and custody of her 13-year-old daughter in the process.
The risks of not posting bail immediately were far too consequential. White works for the state as an in-home caretaker for elderly and disabled clients. “I have people whose lives depend on me, I have to change diapers and cook people’s meals.”
White had a check in her apartment she had been saving for her rent.
“I had to use that check in order to bail myself out,” she said.
White’s case exposed a catch-22 of California’s criminal justice system, where money bail — a mechanism meant to make sure defendants come back to court and stay out of jail — often ends up having the opposite effect: bankrupting them or keeping them locked up.
“When you set it up to where you’re putting bail all the way out to where it’s unreachable, then it’s no longer you’re innocent until proven guilty,” White said. “You’re guilty until you can pay the piper.”
Five years earlier in the same courthouse, Gerald Kowalczyk was arraigned on charges of identity and petty theft for using a credit card he found on the floor of a gas station to buy a cheeseburger.
Kowalczyk was homeless and despite being charged with a low-level misdemeanor, his record was decorated with 60 prior convictions — earning him a “flight risk” label. The presiding judge, concerned he would not return to court, set his bail at $75,000. When Kowalczyk protested, saying he had no source of income, the judge revoked bail altogether and ordered detention.
Kowalczyk challenged the ruling while in custody, but by the time courts got around to it, he had already been in jail, waiting for his day in court, for six months.
According to the Public Policy Institute of California, 79% of the state’s jail population are unsentenced and waiting for trial, meaning the vast majority of inmates in jail are people still presumed innocent.
“We’re three months in, we should be starting to see early changes in the data,” said Raj Jayadev, director of Silicon Valley De-Bug, a nonprofit that runs a network of court monitors who track judges’ compliance with Kowalczyk. Jayadev said San Mateo County’s average bail has already fallen from $5,000 to $1,000.
In the Kowalczyk ruling, the California Supreme Court cast the state’s existing use of bail as a criminalization of poverty and declared, “a court that intentionally sets objectively unattainable bail inevitably does so for the purpose of detention.”
The court ruled that judges cannot use money bail as a de facto detention mechanism. It also said lower-level offenses can be dealt with through alternative means like monitoring, mandatory check-ins and “reasonably attainable” money bail. The only crimes where pretrial detention is mandatory are those that pose serious risk to communities like homicide or sexual assault.
“They really clearly laid out that pretrial liberty is the norm and pretrial detention is the carefully limited exception,” said Madeline Bailey, a senior researcher at the Vera Institute of Justice who studies the link between incarceration and homelessness.
Bailey said “a culture change” among the courts should follow the ruling, but the first few months of implementation have yielded mixed results.
Kowalczyk’s predecessors have ‘come up short’
California has tried its hand at restricting cash bail and reforming the pretrial process, most notably SB 10, which was signed into law by then-Gov. Jerry Brown in 2018. The bill eliminated cash bail in California’s criminal justice system and replaced it with risk assessment tools that gave courts the ability to label defendants as low-, medium- or high-risk and develop corresponding release or detention plans as they wait for their court date.
“Today, California reforms its bail system so that rich and poor alike are treated fairly,” Brown told The Sacramento Bee after signing the bill in August 2018.
But before SB 10 took effect, it was shot down by the American Bail Coalition. Fearing the extinction of California’s multi-million dollar bail industry, the coalition funded a successful veto referendum, Proposition 25, which garnered enough opposition to overturn SB 10 and permanently calcify cash bail into California’s pretrial system.
After the demise of SB 10, lawmakers were tepid on pushing any cash bail reforms until a ruling in 2021 known as the Humphrey ruling. It required prosecution to consider less restrictive alternatives before cash bail, such as electronic tracking, check-ins or drug rehabilitation programs.
If money bail were touted as an option, courts were required to review evidence of the defendant’s financial background, like pay stubs and social security enrollment, to determine what they could afford.
Humphrey, despite being celebrated by legal experts as a landmark ruling, backfired, said Stephanie Campos-Bui, a policy researcher from UC Berkeley who tracked the decision’s rollout. She said judges took the ruling, not as an instruction to evaluate a person’s financial circumstances more closely, but to order pretrial detention by default, flattening its cash bail reform mission.
When defense attorneys filed to have clients who were wrongfully convicted because of high bail re-tried, judges retaliated, she said.
“We were hearing from defense attorneys that they just wouldn’t even say the word Humphrey because it could backfire,” Campos-Bui said.
Tehama County District Attorney Matt Rogers said he observed both an increase in pretrial detention and a decrease in bail setting in the years following the Humphreys ruling.
“It did not play out perhaps the way it was envisioned,” he said.
Researchers found no evidence that Humphrey decreased the state’s pretrial jail population or the average bail assigned to a defendant in California. In fact, in 2022, a year after the Humphrey decision, 74% of people in California jails were still unsentenced and awaiting trial. And California continued posting bail at five times the national average.
The Kowalczyk decision came five years later, with an almost identical spirit to Humphrey and tightened parameters for pretrial detention. Kim Miller, a supervisor at the Sacramento County Public Defender’s Office referred to the ruling as, “Humphrey on steroids.”
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“We should be seeing a pretty dramatic decline in the number of people that are sitting in jail because they can’t pay,” Bailey said.
‘Sell your car from jail’
One of the biggest hurdles prosecutors and public defenders face with Kowalczyk is how to calculate what “attainable bail” means for a particular defendant. Miller said that some judges want to see documentation of all a client’s assets, while some take public defenders at their word.
“If a client says, ‘I can only post $500.’ Sometimes that’s a question of, ‘Is that what would be convenient for them or is that truly what the max that they could actually post?’” she said.
Miller has also seen release denied because Kowalczyk does not include any direction for judges about violations of probation on an already-adjudicated case. She’s seen judges resurrect settled cases as a legal hook to prevent release on a new charge.
A spokesperson from the Sacramento District Attorney’s office said one local judge has defaulted to “splitting the baby” — setting a bail halfway between bail schedule amount and the defendant’s stated maximum.
The Kowalczyk decision also places the responsibility of the financial declaration on the client’s appointed representation, which the Vera Institute’s Bailey finds worrying because of the huge caseloads that public defenders are often responsible for and the structure of arraignment court. Defendants are typically only offered 10 to 15 seconds to discuss financial circumstances with their appointed attorney.
“It’s a really big burden to place on public defenders and on people that are coming before the court,” Bailey said.
Declaring an inability to pay may also hold different weight depending on what county the defendant is being arraigned in. In heavily resourced public defender’s offices like San Francisco County, attorneys are working to file writs to mandate judical compliance with Kowalczyk. But in counties like San Mateo that rely on a private defender panel system, there is no centralized infrastructure to monitor compliance or track judge-by-judge decisions.
“In San Mateo (County), you don’t even have a public defender’s office. So when a judge missteps or doesn’t respect Kowalczyk, you don’t know if an attorney is filing anything or not because they have no system to monitor it,” said Jamilah Rosales-Webb, one of the court monitors who watched Sheree White’s arraignment.
White was entitled to an affordable bail hearing on the basis of her offense. Yet her court-appointed panel attorney, rushed by an assembly-line court docket, told her not to say anything in front of the judge.
Silicon Valley De-Bug’s Jayadev said court watchers across California are concerned about judges’ “elastic” takes on what constitutes attainable bail. He’s seen judges maneuver around setting affordable bail amounts by setting bail whose 10% premium value is affordable for the defendant, essentially forcing them to contract with a for-profit bail bonds company to secure release.
Jayadev also said judges are asking defendants if their families or communities can afford to put up bail on their behalf.
He said some district attorneys will raise bail amounts if family members submit letters of support. He recalled a judge’s rationale to post a bail amount of $50,000 for a homeless defendant with no income.
“The judge was like, ‘I’m not asking him to come up with 50 grand, but you could tell from these letters, he’s very loyal to the people he cares about and that those people are loyal to him. And so why don’t we ask them to come up with $50,000?’” Jayadev said.
Jayadev sat in on a case where a judge was told a defendant could not post bail unless he sold his car. The judge commented that if he were to sell his car for $4,000 from custody, he could pay the 10% premium on a $40,000 bail to a bail bond company.
“It’s just completely antithetical to what Kowalczyk is,” he said.
County probation departments lack resources to keep up
In all California counties except Santa Clara County, which has an entirely separate unit, pretrial services are run through county probation departments.
Karen Pank, executive director of Chief Probation Officers of California, said caseloads have skyrocketed since the Kowalczyk decision. That shift is pressuring judges to pivot from ordering cash bail to ordering electronic monitoring for defendants as they await trial — even when the charge doesn’t necessarily warrant extra supervision.
“If there’s not enough resources to do it safely, especially as our case loads are rising and courts are, for example, relying more and more on GPS. That’s a very, very expensive tool. And so that could make it really cost prohibitive for us to continue to do the work safely,” she said.
Ankle monitors subject wearers to anywhere between six and 58 rules. And increased reliance on pretrial surveillance could result in more arrests, not because of crimes, but because of rule violations.
Critics of consolidating pretrial under probation units say that law enforcement officers should not be delegated to deal with presumably innocent clients.
Nedda Aleaa is the director of pretrial services for Santa Clara County’s Pre-Arraignment Representation and Review unit, the only remaining independent pretrial unit in California. She said that it is concerning that so many counties silo pretrial services into law enforcement.
“They can be punitive because they’re law enforcement-minded,” Aleaa said. “I think it would take a lot of training to get any type of law enforcement agency even ready to take this on. And even then, their mission is different than ours.”
The unit conducts interviews with clients who have been booked into the county jail the night before on the morning of their arraignment hearing, collecting information about debts, medical bills, assets and cash-on-hand that could help the judge decide a reasonable bail amount if the charge warranted money bail.
Aleaa noted that since Kowalczyk, the unit has seen “a large population of clients getting out that would’ve never gotten out before.”
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