Contributor: California law limits on bail are clear. Will the judges continue to ignore you?

Gerald Kowalczyk tried to buy the a hamburger with credit cards he found them on the floor. Then, although he is presumed innocent, he spent months in a California prison – not because the judge decided that he was dangerous, not because he threatened anyone, but because the court set bail at $ 75,000 for a man who could not pay it, then refused bail completely, in contempt of the law. Last week, the California Supreme Court they said in unison I will not repeat. The court held that pretrial release is common; detention before conviction for any crime is a rare, carefully measured practice. If the courts choose to limit the freedom to a monetary payment it “must” be a “reasonable amount.”

For years, California courts used a system of illegal shadow foreclosures. The mechanics were wrong: Set bail at an amount the defendant cannot pay and the effect is the same as ordering his immediate arrest. As the court explained in its Kowalczyk decision, pretrial detention requires strong evidence of a serious crime. again “clear and convincing evidence establishing a substantial likelihood that the defendant's release would result in great bodily harm to others.” Rather, as Judge Joshua P. Groban explained in agreementcourts have used cash bail to incarcerate poor people accused of nonviolent crimes that have “devastating consequences for their employment, education, housing, access to public benefits, immigration status, and family stability.”

This was not a bug. It was a system.

Last week's ruling shuts down that criminal — unceremoniously and unanimously. Courts will no longer be able to use non-affordable bail as a detention order. When detention is not warranted, bail must be set at an amount that can be obtained, based on the actual circumstances of the defendant. The ruling builds directly on Humphrey's 2021 precedent, a California Supreme Court decision that first held wealth-based incarceration unconstitutional and unconstitutional. Help me deliver.

I know how difficult this victory is. I also know how easy it is to be overlooked.

Even after Humphrey's decision, in all of Santa Clara, San Mateo and Alameda counties, jurors inquired about the defendant's financial circumstances once in nearly 250 cases reviewed. In more than 95% of cases, judges did not cite the standard of the law at all when ordering arrest. More than 90% of people arrested for pretrial detention were charged with crimes that were not even jailable under the California Constitution: shoplifting, driving without a license, vandalism. These findings they come from Silicon Valley De-Bug, a community organization whose members spend years watching what happens in the courts.

The program he did not follow the rules set for Humphrey. We have to make sure that the system properly executes a unanimous decision in Kowalczyk.

Start by protecting the community. California is just one two regions which does not include funding for public defense at the trial level, leaving 58 states without federal standards or oversight. The result is a patchwork of unevenly again enough representation. Last week's ruling requires courts to make individualized findings about flight risk, public safety, other conditions of release and ability to pay — meaning defense attorneys must be present at or before the trial, prepared to make competency arguments, demand findings and challenge the default bail record. In counties where public defenders handle 100 or more caseloads, that doesn't happen. It can't happen without resources.

Then there is the question of alternatives. The decision requires judges to consider conditions of release – drug treatment, admission, referral to social services, in extreme cases ankle monitoring – before applying cash bail or incarceration. But these options only exist when states invest in pretrial services outside of law enforcement, programs like San Francisco's Pretrial Diversion Project. Many did not. The constitutional right to choose is nothing more than an alternative for judges to choose from.

Finally, the Judicial Council, which makes court policy in California, should establish monitoring standards, reporting requirements and training procedures that ensure courts no longer impose unnecessary or illegal pretrial detentions.

Kenneth Humphrey spent 250 days in jail for $5 and a bottle of cologne. Gerald Kowalczyk spent months inside buying a hamburger. Behind each one are tens of thousands of Californians who spend the same amount of time in prisons unjustly, who lose their jobs and homes and the custody of their children, because this system considers their poverty as a reason for incarceration.

The Supreme Court has now clearly stated what our Constitution has since 1849: Liberty before trial is a norm. Detention before trial is a carefully limited practice. There is good reason to be presumed innocent: 1 in 3 Arrests in California do not lead to convictions, and increasing people's lives by incarcerating them before a trial is quite debilitating. is increasing future crime.

Let's make sure that this consideration of purity means something that is done when you, or your loved one, need it.

Chesa Boudin is a former San Francisco district attorney and executive director of the Criminal Law & Justice Center at the UC Berkeley School of Law.