The San Francisco district attorney’s office is looking to change California’s constitution, after a recent state Supreme Court decision made it harder for the office to hold people charged with low-level offenses in jail before trial, DA Brooke Jenkins said on Tuesday morning.
Since the April 2026 ruling, In re Kowalczyk, judges must find that defendants fall within the state constitution’s limited definition of a “no-bail” case. The latter applies primarily to violent crimes and is the bar for holding suspects in jail while awaiting trial. Before that ruling, a defendant could be detained for a number of other reasons, including previous failures to appear in court.
The result has been far fewer people in jail — San Francisco on Saturday recorded its lowest jail population in three years — and many more pretrial releases.
At a Tuesday morning press conference on the city’s response to retail theft, Jenkins said that the Kowalczyk ruling has made it harder to prevent repeat offenders from further committing crimes.
”We are limited in being able to do what we need to do to keep those people from committing more theft in our stores,” Jenkins said. “So we will work on this to make sure that we get the California Constitution changed so that we, as a court system, can do what we need to restrain those who refuse to follow the law.”
In a subsequent statement from the DA’s office, Jenkins confirmed that she is “working to advance legislation” to give judges more power over detention, but did not explain how that legislation is being pushed forward.
She said the limits to detention resulting from Kowalczyk are “rooted in our state Constitution,” and that “California voters have the power to change” those limits.
“I believe we need to do exactly that,” Jenkins wrote.
At the Sept. 8 press conference, city officials introduced plans to address retail theft, noting that they have heightened enforcement and increased collaboration with retailers. Mayor Lurie pointed to a “nearly 20% decline in larceny cases so far this year,” adding that “SFPD officers have made 844 retail theft arrests,” in the last six months, “an increase of 27% over the previous six months.”
But Jenkins said there is still work to do. And that starts with keeping the “most prolific thieves in our city” in jail while their cases are being investigated, she said.
There’s no public data yet that can confirm rising rearrest rates result from the Kowalczyk decision, but Jenkins said that her office is tracking re-arrest rates of those released pretrial.
“We have seen [re-arrests] a fair amount, but we are waiting until we can collect enough data to really talk about that more openly,” Jenkins said.
The San Francisco public defender’s office said it was disappointed in Jenkins’ words.
“The California Supreme Court’s Kowalczyk decision was a powerful endorsement of our state and federal Constitutions’ most basic tenets — that people are innocent until proven guilty and have a right to due process,” the office wrote.
“It is disappointing and telling that the district attorney appears to oppose these most basic of rights.”
The best thing the DA’s office can do for now, Jenkins said at the press conference, is make sure that individuals released pretrial are quickly arrested if they commit another crime.
But, she added, her office is preparing to make the case in court and to the public “that something does need to change.”
