Bail realities and policy fictions: The truth about affordable bail

The Daily Journal article of Dec. 29, 2025 ("Policy changes falter as courts resist individualized hearings") by John Roemer describes a system struggling to implement individualized bail hearings, constrained by cost, congestion and institutional inertia. What it never confronts is the more basic truth: California already has a constitutionally complete, rule-bound system governing pretrial liberty. That system has existed, in substantially the same form, since 1849. The crisis the article portrays is not the result of legal uncertainty or reform overreach. It exists because courts have refused -- for decades -- to follow the Constitution under which they already operate.

This is not a new debate. Humphrey and its progeny do not constitute a novel reform or the unintended consequences of appellate and Supreme Court rulings. From the moment California adopted its first Constitution, the right to bail has been embedded as a foundational safeguard of personal liberty. Article I has always treated pretrial detention as the exception and release as the rule. Judges were never given broad license to jail people before trial because it was administratively convenient, fiscally efficient or politically expedient. The Constitution narrowly circumscribes the circumstances under which a person may be detained without bail, and it does this deliberately.

That structure has not changed. What has changed is practice.

Over time, California's courts drifted from a constitutional model that presumes liberty to an operational model that too often presumes detention. Money bail became a stand-in for individualized determinations. The result is a system that looks orderly on paper but operates as a wealth-based detention regime in reality. This regime incarcerates people by speculating they are dangerous or likely to flee--a practice courts have repeatedly rejected--and because they are poor.

The Daily Journal article gestures toward this problem but then treats it as an unfortunate byproduct of underfunding and crowded dockets. That framing obscures the real issue. The Constitution does not guarantee expedience. It does not yield to workload. And it does not become optional because compliance takes time.

Since our first draft of a Constitution in 1849, Article I, section 12--then grounded in sections 6 and 7--forcefully stated there is a presumptive right to bail. Pretrial detention is permitted only in a narrow band of cases and only upon specific findings. The burden rests with the prosecution. The standard is clear and convincing evidence. And the court must consider whether any condition or combination of conditions short of detention can reasonably assure public safety and appearance. This is not aspirational language. It is operative constitutional law.

When courts ignore those requirements--by setting unaffordable bail based on perfunctory findings, by defaulting to pretrial detention because they don't like the allegations against unconvicted persons, by treating "public safety" as a talisman and the law as a burden--they are not exercising discretion. They are violating the Constitution.

In re Humphrey did not exhaustively define every procedural and evidentiary question that arises in a constitutional bail determination. The Court described its holding as a "general framework" and acknowledged that additional questions, including how competing constitutional provisions interact and what standards govern detention determinations, would require further development. In re Humphrey 11 Cal.5th 135, 152 & fn. 7. (2021). Trial courts were on notice from the outset that Humphrey was the floor, not the ceiling.

That additional structure has since been supplied. With In re Harris 16 Cal.5th 292 (2024), the Supreme Court clarified that guilt may not be presumed at any stage of a bail or detention determination, that the prosecution bears the burden on every required finding, and that evidentiary shortcuts must still satisfy due process. Most recently, Nunez-Dosangos v. Superior Court 107 Cal.App.5th 283 (2024) recognized explicitly what had already become apparent: Harris did not change the law so much as it enforced the implications of Humphrey's framework. What some courts now describe as an unmanageable procedural burden is, in reality, the predictable consequence of finally being required to do the constitutional analysis that had long been deferred.

The Daily Journal article to which we are responding quotes prosecutors who complain that individualized bail determinations are labor-intensive, expensive and difficult to administer at scale. That may be true. It is also beside the point. Due process has never been optional because it is inconvenient. The suggestion that constitutional safeguards must yield because they require time and resources is not a public safety argument. It is an argument that due process is too expensive and therefore should be ignored.

Constitutional compliance should not require full-blown detention litigation in every case. Pretrial detention is meant to be rare, and the Constitution assumes that most arraignments will be resolved quickly through release on affordable bail or non-monetary conditions. When courts normalize detention, however, they impose immediate and irreversible costs on the defense, including increased plea pressure before the state has been required to prove anything at all.

The damage is not merely theoretical. In many counties, defense counsel must obtain advance clearance to review key evidence with incarcerated clients. Body-worn camera footage, recorded interviews, surveillance video and audio evidence that could be reviewed freely out of custody become logistically difficult or impossible to examine pretrial. The state gains a tactical advantage not because its case is stronger, but because the defense's ability to prepare has been artificially constrained.

Public safety is not advanced by a system that detains people based on their bank balance. High money bail does not measure risk, only wealth. If wealth determines release, then wealthy people deemed "dangerous" are released, while poor people deemed "safe" are detained. That's not public safety. It's economic sorting.

The hypocrisy embedded in this logic is rarely acknowledged. Prosecutors routinely argue that bail must be set high to protect the public, while simultaneously defending a system that allows those with means to purchase their freedom regardless of the asserted risk. If a person truly presents an unacceptable danger, the Constitution permits detention--but only after seriously embracing the law so that the required findings are made and the burden is met. What the Constitution does not permit is the use of unattainable bail as a workaround for a judicial preference of pretrial detention.

The article also invokes judicial discretion as though it were a constitutional virtue unto itself. Discretion, however, does not exist in a vacuum, but within a structure. Article I does not grant judges unbounded authority to jail people pretrial based on instinct, habit, or administrative or political pressure. It grants discretion only within carefully defined constitutional limits--limits that Humphrey identified, Harris clarified and subsequent cases have enforced. Discretion is constrained by evidentiary standards and required findings made on the record. To treat resistance to those constraints as a reasonable exercise of discretion is to invert the Constitution's design.

This is where the current posture of the California Supreme Court matters.

The court is often divided on questions of criminal procedure. On bail, it is not. Across cases and across years, the court has spoken with remarkable consistency: liberty is the norm, detention is the exception and money cannot be used as a substitute for constitutionally required findings. That consistency matters because it directly contradicts the suggestion that trial courts are navigating unsettled law.

The Supreme Court's decision to grant review in In re Kowalczyk 85 Cal.App.5th 667 (2022) underscores the point. The court asked two narrow and revealing questions: which provision of Article I governs the denial of bail in noncapital cases, and whether a court may ever set bail above an arrestee's ability to pay.

The Court of Appeal in Kowalczyk attempted to reconcile Article I, sections 12 and 28 in a way that risks normalizing unaffordable bail. The Supreme Court's grant of review suggests discomfort with that result. The court has not yet issued a final opinion, and it may yet refine its reasoning. But in light of the court's bail jurisprudence over the last decade, there is little reason to believe it will endorse a regime that permits detention by pricing freedom out of existence.

This is why habeas litigation remains necessary and why defense counsel must continue to utilize it whenever trial courts balk at the default. As a reminder: "liberty is the norm, and detention prior to trial...is the carefully limited exception." Yedinak v. Superior Court 92 Cal.App.5th 876, 881 (2023). These are not ceremonial words to be intoned by priests in robes waving incense to smoke up the room just before an order of pretrial detention. And habeas is not an innovation; it is a constitutional safety valve designed precisely for moments when courts refuse to enforce the limits placed upon them. The fact that defense lawyers must repeatedly resort to habeas petitions to secure compliance with settled constitutional law is not evidence that the law is unclear. It is evidence that the law is being ignored.

The constitutional problem has never been the existence of bail. It is the routine use of unaffordable bail as a substitute for detention without due process as cabined by the Constitution and the individualized findings the Constitution requires.

In re Humphrey and similar cases did not invent new rights. They reminded us of established ones. Humphrey did not announce a new policy preference; it reaffirmed an original constitutional command. Courts that treat it as aspirational rather than binding are not exercising restraint. They are engaging in defiance.

Those of us who have practiced criminal defense long enough have watched this drift happen in real time. We have seen bail hearings reduced to rote exercises, clients jailed for days or weeks because a schedule said so, and constitutional inquiries deferred indefinitely.

And yes, we get it. As former CDAA president and Yolo County District Attorney Jeffery W. Reisig noted, due process is expensive. It should be. Taking away someone's liberty should not be easy for the state. Pretrial detention makes plea agreements easier to wrench from accused people. It does nothing to protect the public from people who are going to be released on probation once those pleas have been forced from them.

We have also seen what happens when courts are required to follow the rules. People are released. Families remain intact. Jobs are preserved. Court appearances are made. Public safety is not compromised.

And real opportunities for people--more of whom are falsely accused or overcharged than most people realize--to force the state to prove its accusations beyond a reasonable doubt able to work within the system, rather than being smothered into submission by it.

The Constitution already struck the balance long before modern bail schedules, commercial surety industries or overcrowded arraignment calendars entered the picture.

The Daily Journal article asks readers to sympathize with a system under strain. What it should ask instead is why that system continues to resist a constitutional framework that has been in place for more than a century and a half to protect the rights of the People. The CDAA should remember and embrace this. But when we say "The People of the State of California vs John Doe" it's easy to forget that John Doe is a person: one of "the People." The problem is not that California lacks guidance. It is that too many actors within the system have grown accustomed to operating without it.

No. This is not a call for reform. Humphrey and its progeny do not call for reform. This is a call for compliance with a law written into our Constitution even before California became a state.

Until courts treat Article I, section 12 as binding law rather than background noise, the "crisis" will persist--not because the Constitution failed, but because the institutions sworn to uphold it don't.