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Aug 20, 2026
If you or a loved one has recently been arrested, one of the first questions is often, “Can I get out of jail while my case is pending?” A recent California Supreme Court decision, In re Kowalczyk, significantly affects your bail and custody status in jail.
The Court reaffirmed an important constitutional principle: a person’s freedom should not depend solely on their ability to pay bail. Instead, judges must consider whether release can be accomplished through the least restrictive conditions necessary to protect the public and ensure the defendant appears in court.
Why In re Kowalczyk Matters
For many years, California courts frequently relied on county bail schedules to determine how much money someone had to post before being released.
In practice, this often meant that two people accused of the same offense received the same bail amount—even if one could easily afford it and the other could not.
The California Supreme Court made clear that courts cannot simply set an unaffordable bail amount as a way to keep someone in custody. If a court believes detention is necessary because a defendant presents a serious risk to public safety or is unlikely to return to court, the court must follow the constitutional procedures required by law rather than setting an unattainably high bail amount.
What Does this Mean to you?
When deciding whether someone should remain in custody, courts should consider the individual circumstances of each case, including:
- The nature and circumstances of the alleged offense.
- The defendant’s criminal history.
- Whether the defendant has previously appeared in court.
- Family and community ties.
- Employment and stability.
- Whether less restrictive conditions—such as electronic monitoring, supervised release, or stay-away orders—could reasonably protect the public and ensure the defendant’s appearance.
Simply put, the question should not be, “Can this person afford bail?” The question should be, “What conditions are reasonably necessary to protect the public and ensure they return to court?”
Every defendant deserves an individualized determination—not one based solely on a bail schedule.
Can You Request a New Bail Hearing Based on the New Case Law?
Possibly.
An attorney may be able to request a new bail hearing and argue that the court should reconsider release under current constitutional standards.
While In re Kowalczyk does not guarantee release, it provides additional authority supporting individualized bail determinations rather than relying exclusively on predetermined bail amounts.
Why Hiring an Experienced Criminal Defense Attorney Matters
The first few days after an arrest are often the most important. A criminal defense attorney can:
- Request a bail reduction.
- Present evidence supporting release.
- Argue that less restrictive alternatives are appropriate.
- Protect your constitutional rights throughout the criminal case.
The sooner an attorney becomes involved, the greater the opportunity to advocate for your release and begin preparing your defense.
Contact The Law Office of Victor Nasser
If you or a loved one has been arrested in Kern County or anywhere in California, don’t wait until your next court date to learn your options.
Call The Law Office of Victor Nasser today at (310) 903-9721 or request a confidential consultation online. Schedule a Consultation
Our office is committed to protecting our clients’ constitutional rights and fighting for the best possible outcome from the very beginning of a criminal case.
Disclaimer
This article is provided for informational purposes only and should not be construed as legal advice. Every criminal case is unique, and reading this article does not create an attorney-client relationship with The Law Office of Victor Nasser. If you have been arrested or have questions about bail, you should consult with a qualified criminal defense attorney regarding the specific facts of your case.
