On April 30, 2026, the California Supreme Court issued a landmark decision that represents a significant step towards establishing a pretrial system that is grounded in both state and federal constitutional law, and in which judges make informed, intentional decisions—based on clear legal criteria—about pretrial release and detention.
In its unanimous ruling in In re Kowalczyk, the Court held that courts may detain only those eligible for pretrial detention as clearly defined under article I, section 12 of the state’s constitution: people accused of capital crimes, and those accused of felonies where there is clear and convincing evidence of a threat of and/or a substantial likelihood of great bodily harm to others. Those who fall outside of the circumstances described under section 12 must be released with appropriate conditions.
Those conditions may include a money bond, but the Court said, “the court may not set bail in an amount that is objectively unattainable for the defendant.” Put even more clearly, the Court stated that “courts 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.”
In summary, the Court stated that “[i]f the court finds it necessary to condition release on monetary bail, the court must set bail in an amount that is reasonable, considering the purposes of bail and based on an individualized assessment of the totality of the circumstances in a case, including the defendant’s financial situation.” The Court continued: “While the amount of bail need not be easily affordable or convenient to the defendant, the court must set bail in an amount that is consistent with, and designed to effectuate, a defendant’s general right to pretrial release, subject only to the exceptions set forth in section 12.”
It’s gratifying to see the Court clearly articulate a framework that upholds fundamental American constitutional rights, while permitting the detention of those who pose a substantial, legally defined threat to public safety.
Upholding Pretrial Legal Principles
The California decision upholds state and federal constitutional law by reaffirming that release before trial is the norm and detention the carefully limited exception—and that any limits laid out in law, particularly constitutional law, must be followed.
We should be clear that California is not blazing a new path. New Jersey and Illinois have, for many years, used a rational legal framework that requires judges to make “in-or-out” decisions about release or detention without money. Those states also have robust due process protections, pretrial services, and nonfinancial release conditions to meet the individualized needs of people coming before the court.
The Kowalczyk decision clearly articulates the many intersecting legal principles that justify—and perhaps even require—states to move away from reliance on money bond and towards systems that are constitutionally sound.
Opportunities to Build on Kowalczyk
With this decision, the California Supreme Court seems to be inviting both California practitioners and pretrial stakeholders across the country to make their pretrial systems more fair, just, and effective.
Many states have legal frameworks that resemble California’s. While the specifics may vary, these frameworks often include:
- constitutional limits on who can be detained before or without trial
- laws or court rules that set forth a presumption of release for those not eligible for detention
- a requirement that any release conditions be individualized and least restrictive
- a requirement that nonfinancial conditions be considered first; and financial conditions considered only when no nonfinancial conditions will reasonably assure court appearance and public safety
By applying the reasoning of Kowalczyk to other state systems, opportunities to advance more fair and effective pretrial practices clearly emerge. Here are some of the opportunities we see in California and beyond:
Strengthen, Expand, and Educate Decisionmakers on Nonfinancial Conditions of Release
The Kowalczyk decision underscores the necessity of having nonfinancial release conditions available to judges, prosecutors, and defense counsel for meaningful consideration. As the Court held, “in many cases, nonfinancial alternatives … suffice to ensure public safety and the defendant’s appearance at trial.” In California and many other states, these nonfinancial options must be considered before a court imposes financial conditions.
Effective nonfinancial conditions can include monitoring and check-ins with pretrial services staff. Modern pretrial services agencies are staffed with social workers who are highly skilled in motivational interviewing, trauma-informed support, and social needs. Peer supports, people with lived experience, can also provide valuable guidance, helping people meet court obligations while navigating a confusing and overwhelming court system.
Court date reminders, by phone or text, should be required by every court system because they are so effective at helping people get to court. There is also good research showing the value of court forms, citations, and notices to appear that clearly state, in plain language, when and where a person must appear, how to request a date change, and the consequences of violating or committing an offense. Other practical assistance, like transportation or childcare assistance, can reduce barriers to getting to court.
Electronic location monitoring, no-contact orders, restrictions on possession of a weapon, travel, curfews, work release, and surrendering passports are among the more restrictive nonfinancial conditions that courts may order when deemed necessary.
To ensure that nonfinancial conditions are a viable option, pretrial systems must make sufficient resources available to these programs and services, and consider that nonfinancial conditions can be a much smarter use of limited public resources than detention In addition—and consider this a call to action for all pretrial practitioners—it is critical that judges, defense counsel, and prosecutors understand what conditions are available, how they work, and what they provide, so that they can argue for and meaningfully consider these conditions.
This is why APPR helped Oakland County, Michigan, develop a series of Pretrial Release Conditions Fact Sheets for each condition. Each basic one-pager explained the condition, its efficacy at improving court appearance and/or community safety, the cost, the circumstances under which it was most appropriate, and the potential burdens or downsides of ordering the condition. This allowed pretrial decision makers to make careful, intentional, and individualized arguments and decisions regarding release conditions.
Challenge the Use of Money Bond
While the Kowalczyk decision only applies to California, the Court’s holding that money bond may not be set at a level that is objectively unattainable for a person accused of a crime is based primarily on federal constitutional law. Therefore, the opinion is a tool that stakeholders in other states can use to advance similar arguments in their jurisdictions.
The Kowalczyk opinion also provides an opportunity to argue against the imposition of money bond altogether. The Court is clear that any pretrial condition—including money bond—must advance a valid state interest in court appearance and/or community safety. The laws, court opinions, and rules in many other states contain a similar requirement.
But financial conditions of release don’t do either of those things. The research shows that secured money bond doesn’t improve court appearance rates or law-abiding behavior. Given that there is no reliable or credible evidence that secured financial conditions promote either outcome, courts should be pressed to justify their use, even when a person can afford to post bond.
Proceed Cautiously and Deliberately When Considering Constitutional Change
Just like in California, many states define the group of people who may be detained before trial in their constitutions or statutes. Often, those detention-eligibility nets are far narrower than California’s—sometimes limiting detention only to people charged with capital crimes.
In those states, just like in California before the Kowalczyk decision, courts use very high, objectively unattainable bond amounts to get around their detention limitations. While many consider this a necessary stop-gap measure to protect community safety, many lawmakers are starting to consider expanding their detention-eligibility nets to include more charges. Texas just amended its Constitution to this effect in 2025, and Indiana is looking to do the same this year.
The Court in Kowalczyk recognized that Californians might express concern after its decision and highlighted voters’ ability to change the constitution through legislation and ballot measures:
Our Constitution reflects a balance between a criminal defendant’s general right to pretrial release and the governmental interest in protecting public safety and ensuring the integrity of the criminal justice process while the defendant awaits trial. To the extent the voters desire to adjust that balance, it remains in their power to do so. (Emphasis added.)
While an expansion of detention eligibility is a valid discussion, it should not be entered into lightly or without substantial planning. New Jersey and Illinois spent years studying their systems, collecting data, and working with a broad cross-section of pretrial system stakeholders, victim advocates, and community representatives to provide input into the new laws. Critically, they not only modified their eligibility and process of preventive detention, but they also looked at their systems as a whole and adopted a comprehensive set of changes that also added due process protections for those accused, strengthened and expanded pretrial services and the availability of nonfinancial release conditions, and mandated ongoing data collection to ensure accountability for results.
APPR recognizes the complexity of this topic and, over the next twelve to eighteen months, will convene a workgroup of experts to explore various models of preventive detention and develop actionable resources that assist states and communities in understanding and moving forward on this issue.
APPR Discussions & Trainings
The Kowalczyk decision serves as a great reminder that we are living through—and contributing to—a fundamental change in the way American pretrial systems work. Recognizing the urgency of this issue, APPR will hosting an open discussion about the Kowalczyk decision on June 5, 2026, at 1 pm ET (we’ll post more details here soon). After reviewing the decision’s main holdings, participants will be invited to comment and ask relevant questions.
On June 23, 2026, at 1 pm ET, APPR will host Preventive Detention: Principles, Policies, and Practice. This webinar will help your system better align with intentional pretrial decisions while honoring the general right to pretrial release. APPR remains ready to assist you in designing and implementing policies that will improve your pretrial systems and generate better results for your communities.
