By Nigel Duara for CalMatters

By most metrics, Gerald Kowalczyk was a uniquely bad candidate to leave jail before his trial. He had a criminal record of more than 60 convictions, a history of failing to adhere to his release conditions and a pretrial algorithm’s assessment that he presented the highest risk score possible.

A San Mateo Superior Court judge set his bail at $75,000, an amount Kowalczyk, homeless and unemployed, could not pay. The charges were that he used someone else’s credit card to buy a $7 cheeseburger.

He served six months for the 2021 offense, but his case revived California’s long-running debate over bail amounts and it is still playing out. Now, the California Supreme Court is examining his case to decide if it is constitutional for judges to set bail at amounts far higher than a defendant can pay.

The case could help resolve the messy climate around bail in California four years after voters by referendum overturned a law that would have eliminated the cash bail system. Court decisions and a 2008 voter-approved law have created conflicting directives for judges deciding whether they can hold someone before trial at a price tag the defendant cannot afford.

The question for the high court is whether two articles in the California Constitution can harmonize: a defendant’s right to be released on bail except for certain violent or sexual crimes, and a separate article created by the 2008 ballot measure that instructs judges that “public safety and the safety of the victim shall be the primary considerations” in setting bail amounts.

“The fundamental question you have to ask yourself is, is money a good proxy for somebody’s culpability,” said Santa Clara University law professor David Ball, who co-authored an amicus brief in support of Kowalczyk. “Are rich people safer than poor people, are poor people inherently guiltier than rich people? And I don’t believe that’s true.”

Kowalczyk was 55 when he was arrested and charged with three counts of theft. He told police he had found credit cards at gas stations around San Mateo and swiped three of them while trying to buy a cheeseburger. He then tried to have the charges refunded, which the restaurant manager refused, and attempted to return the food.

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Kowalczyk was unable to pay his way out of jail, spent six months incarcerated and then pled guilty to one count of theft before he was freed. While in jail, he missed a scheduled surgery on a cyst in his jaw that left him deaf in one ear, according to his appeals lawyers.

Before his plea, Kowalczyk appealed to the 1st District Court of Appeal in San Francisco, seeking his release. The case bounced between the appeals court and the Supreme Court until last year, when the high court accepted the case. Lawyers on both sides have submitted briefs but the case has not yet been scheduled for oral argument.

Further complicating the issue is a 2021 California Supreme Court decision that forbids judges from setting bail amounts higher than what a defendant can pay, unless the defendant is a danger to the public or unlikely to show up for court.

That decision did not immediately end cash bail for indigent defendants, a UCLA School of Law review found in late 2022. In fact, the authors said, many judges interpreted the decision to mean that they have even more authority to hold people without bail.

Disagreement over bail’s purpose

Ball, the law professor, argues that Kowalczyk’s bail didn’t do what bail is supposed to do: It didn’t make the public any safer, because Kowalczyk didn’t present a threat to the public.

“This guy was trying to buy a hamburger,” Ball said. “There’s no horror movie that’s ever been made about the guy who bought a hamburger with somebody else’s credit card.”

But San Mateo Deputy District Attorney Joshua Martin, who will argue the case before the Supreme Court, said Kowalczyk’s bail wasn’t about protecting the public, but was instead necessary to ensure he would show up to court.

“The baseline should be release (from jail) if someone doesn’t have the means to post bond and is not a violent person, that’s our position,” Martin said, “but there is a sort of a rational limit to that when you imagine someone who simply refuses to come back to court.”

Nationally, the median bail for felonies was $10,000, but 32% of people who were being held in jail between April 2023 and April 2024 reported an annual income of less than $10,000, according to a report from the Prison Policy Initiative, a non-profit that advocates against mass incarceration.

The most recent decision in Kowalczyk’s case was in the 1st District Court of Appeal, which found in December 2022 that the California Constitution “does not prohibit courts from fixing bail at an amount a defendant cannot likely meet” but added a caveat: “it will be the rare case where such a monetary condition is truly necessary.”

Kowalczyk’s legal team is appealing that judgment and argues that the appeals court decision muddies the water on bail release decisions, potentially throwing the entire system into chaos.

“The lower court’s opinion will cause confusion in the trial courts,” wrote Kowalczyk attorney Marsanne Weese. “This opinion has created a situation in which trial courts can now opt to forego the rigorous evidentiary requirements of (the Constitution) by simply imposing a de facto detention through unaffordable bail.”

High interest in bail case at California Supreme Court

The case has attracted outside attention — 14 organizations filed amicus briefs, 11 in support of Kowalczyk, including ones from Human Rights Watch and the bar associations in Alameda, Los Angeles and Santa Clara counties.

Three organizations filed in support of the San Mateo District Attorney’s Office, including the conservative Criminal Justice Legal Foundation and the San Francisco District Attorney’s Office.

Ball argues that the impact of incarceration on a person’s life needs to be considered in cases of non-violent, non-sexual crimes.

“Being in prison and being in jail harms people because it results in worse outcomes and because you know if you have a job you’re going to lose it,” Ball said. “I mean look at him, right. He could have healed himself and gotten housing, which might put him on the path where he doesn’t have to use a fake credit card in order to get some food to eat.

“We want that, right? Putting him in jail is not gonna address any of those problems.”

Greg Totten, CEO of the California District Attorneys Association, wrote in an amicus brief supporting the government’s case against Kowalczyk that the court system needs the coercive effect of cash bail to keep operating.

Eliminating the financial aspect of bail “makes the criminal justice system the proverbial revolving door and undermines the entire voter-approved purposes of the body of laws governing pretrial detention and bail in this state,” Totten wrote, “namely public safety and ensuring that defendants appear in court.”