In re Kowalczyk

── In re Kowalczyk ── Court: California Supreme Court Date: April 30, 2026 Category: General IN THE SUPREME COURT OF CALIFORNIA In re GERALD JOHN KOWALCZYK on Habeas Corpus. S277910 First Appellate District, Division Three A162977 San Mateo County Superior Court 21-SF-003700-A April 30, 2026 Chief Justice Guerrero authored the opinion of the Court, in which Justices Corrigan, Liu, Kruger, Groban, Evans, and Wiley* concurred. Justice Groban filed a concurring opinion, in which Justices Liu and Evans concurred. Justice Wiley filed a concurring opinion. * Associate Justice of the Court of Appeal, Second Appellate District, Division Eight, assigned by the Chief Justice pursuant to article VI, section 6 of the California Constitution.  In re KOWALCZYK S277910 Opinion of the Court by Guerrero, C. J. Our state and federal laws generally presume that a person charged with a crime will not be detained prior to trial. The California Constitution has recognized a right to release on bail since 1849. (Cal. Const. of 1849, art. I, § 7.) Our state Constitution continues to guarantee such a right, providing that a defendant “shall be released on bail by sufficient sureties,” subject to specifically delineated exceptions. (Cal. Const., art. I, § 12 (section 12).) For noncapital offenses, these exceptions are set forth in subdivisions (b) and (c) of section 12, which limit the right to release on bail in certain felony cases involving violence, sexual assault, or threats of great bodily harm where a court makes required findings by “clear and convincing evidence” of a “substantial likelihood” of specified harms if the defendant is released. (§ 12, subds. (b), (c).) As it has since 1849, section 12 also prohibits the requiring of excessive bail. This court has previously addressed the operation of our state’s system of bail and the implications of how bail determinations have evolved over time. In In re Humphrey (2021) 11 Cal.5th 135 (Humphrey), we recognized the reality in California that many criminal defendants who might otherwise be entitled to pretrial release were nonetheless being detained “ ‘solely because’ the arrestee ‘lacked the resources’ to post bail.” (Id. at p. 143.) In Humphrey, we held that the common practice of detaining criminal defendants based solely on their financial condition violated state and federal equal protection and due 1  In re KOWALCZYK Opinion of the Court by Guerrero, C. J. process principles. To protect against this violation, we held that courts may not condition release on posting bail unless they “consider an arrestee’s ability to pay alongside the efficacy of less restrictive alternatives” to money bail. (Id. at p. 152.) We also held that while constitutional principles did not “categorically prohibit the government from ordering pretrial detention, . . . ‘[i]n our society liberty is the norm, and detention prior to trial or without trial is the carefully limited exception.’ ” (Id. at p. 155.) We left some questions unresolved in reaching our holding in Humphrey. We did not decide whether section 12 “can or should be reconciled” with a more recently amended provision of our Constitution, article I, section 28, subdivision (f)(3) (section 28(f)(3)). (Humphrey, supra, 11 Cal.5th at p. 155, fn. 7.) Section 28(f)(3) also pertains to bail and provides in part, “A person may be released on bail by sufficient sureties” for noncapital offenses. (Italics added.) It also mandates that, in making bail determinations, “[p]ublic safety and the safety of the victim shall be the primary considerations.” (Ibid.) Consistent with section 12, section 28(f)(3) also prohibits the requiring of excessive bail. We granted review in this matter to conside