UPDATE: LA County Courts Reinstitute Bail for Nonviolent Offenders
The Los Angeles County Superior Court ended its COVID-19 emergency bail schedule on June 30 amidst a new surge of infections.
UPDATE 8/4/2022: On July 27, the LA County Superior Court responded to Knock LA‘s public records request concerning the Bail Committee. The court provided a list of 28 judges who currently sit on the committee, but refused to disclose any notes, minutes, or internal communications of the Bail Committee on the basis of “judicial deliberation privilege.” Essentially, the court argues that the public interest weighs in favor of nondisclosure, because revealing the deliberative process of bail-setting would “discourage candid discussion” within the judiciary.
California state law gives judges a great deal of discretion in deciding countywide bail schedules, but recent case law is starting to challenge that. Earlier this year, the 9th Circuit court of appeals upheld a decision by a federal district court in Buffin v. California that San Francisco’s countywide bail schedule violated the 14th Amendment, because it failed to consider an arrestee’s ability to pay. That decision calls into question whether the LA County Bail Committee’s new bail schedules are constitutional. It is impossible to know whether the Bail Committee considered that risk, because the court invoked judicial deliberation privilege. The names of the Bail Committee members are listed below. We have also listed whether members worked as former prosecutors or public defenders with information we could find:
• Honorable Karla Kerlin – Chair – DA
• Honorable Victoria B. Wilson – Vice-Chair
• Honorable Mark S. Arnold
• Honorable Armenui Ashvanian – DA
• Honorable Joseph Burghardt – PD
• Honorable Amy Carter – DA
• Honorable Maria Cavalluzzi – PD
• Honorable Christopher W. Dybwad – PD
• Honorable Miguel Espinoza – DA
• Honorable Alexander C. Giza
• Honorable Danette J. Gomez – DA
• Honorable Altus W. Hudson
• Honorable Anne Hwang – PD
• Honorable Michelle C. Kim – PD
• Honorable Jerry B. Marshak
• Honorable Theresa McGonigle
• Honorable Peter J. Mirich
• Honorable Enrique Monguia – PD
• Honorable Serena Murillo – DA
• Honorable Carol Najera – DA
• Honorable Cherol J. Nellon – PD
• Honorable Sherry L. Powell – DA
• Honorable William C. Ryan
• Honorable Jana M. Seng – PD
• Honorable Natalie Stone
• Honorable Frank Tavelman – DA
• Honorable Pamela Villanueva – PD
• Commissioner Angel Navarro – PD
The Superior Court of Los Angeles County recently ended its COVID-19 Emergency Bail Schedule, which set bail at $0 for most nonviolent offenses. The policy, which ended on June 30, was enacted to reserve jail capacity for more serious offenders to limit the spread of COVID-19. Although the court “is mindful that a minor theft or drug offense should not needlessly result in an unnecessary risk of health or life,” it has chosen to end this public safety measure amidst a new surge of infections.
As a result of the LA County Superior Court’s decision, more nonviolent defendants, who have yet to be convicted of any crime, will sit behind bars for months or even years waiting as their cases wind through the criminal justice system.
The court cited Governor Newson’s lifting of most pandemic orders and expiration of the California Judicial Council’s “Emergency Rules Related to COVID-19” as its reasoning for this change. But the Judicial Council’s emergency rule concerning $0 bail, rule 4, was repealed on June 20, 2020. Since then, the court has extended its own Emergency Bail Schedule multiple times — the second extension was in direct response to the repeal of rule 4.
The Emergency Bail Schedule did not set bail at $0 for every offense, nor did it take away a judge’s discretion to deny bail. Serious and violent felonies still had cash bails, as did misdemeanor charges like domestic violence, unlawful firearm possession, and driving under the influence. Repeat offenders were also exempt from $0 bail. It also kept other methods of assuring court appearances in place, like electronic monitoring and check-ins with pretrial officers.
Still, the COVID-19 policy increased the amount of arrestees on pretrial release: a study published by the LA County Board of Supervisors in March 2022 found that pretrial release went up 7% in misdemeanor cases and 18% in felony cases from early 2020 to early 2021. Earlier this year, LA County public defender and Local 148 member Garrett Miller told Knock LA, “When a client is free while fighting their case, they are able to make the thoughtful decisions necessary to defend their case without the trauma of incarceration and the stress of losing their job, housing, and the ability to care for their loved ones.”
Criminal defendants who are not jailed may be in a better position to defend themselves and exercise their constitutional right to a trial. Alec Karakatsanis, founder and executive director of Civil Rights Corps, drew attention to the bail schedule change on Twitter, and noted that cash bail is a powerful form of leverage in inducing guilty pleas. A defendant waiting for a distant trial date while in jail faces strong pressure to take a guilty plea. This pressure may include the opportunity to plea guilty and go free immediately on a criminal sentence of time served, or relocation following a guilty plea out of County jail and into the somewhat better conditions of state prisons.
The US criminal justice system is built around the premise that most defendants will plead guilty: only about 6% of state criminal cases go to trial. In California, only 2% of criminal cases were resolved by jury trial in the 2019-20 fiscal year. Plea bargains are far less expensive and time intensive than trials, and COVID-19 has significantly increased the delay before a defendant’s trial date.
The Emergency Bail Schedule did not entirely eliminate cash bail, but it did allow many low-income people to make decisions about their case from home without paying a fee to a bail bond agent, which are often burdensome and usually nonrefundable, regardless of the case’s outcome.
It’s worth underscoring that the Emergency Bail Schedule did not allow automatic release for arrestees: it simply removed the economic barrier of cash bail for lower-level offenses. And despite law enforcement pushback against the initial statewide $0 bail rule, a pretrial reform study showed that failures to appear and rearrest rates remained low and stable from 2020 to 2021.
The LA County Superior Court’s decision to reenact non-zero cash bail schedules is against a new legal backdrop in California. On March 25, 2021, the California Supreme Court decided In re Humphrey, and held that “the common practice of conditioning freedom solely on whether an arrestee can afford bail is unconstitutional.” The court pointed to other conditions of release “such as electronic monitoring, regular check-ins with a pretrial case manager, community housing or shelter, and drug and alcohol treatment” that could protect public safety and assure appearances at trial. In cases where a financial condition is still necessary, a California court must now consider the arrestee’s ability to pay the stated amount of bail.
A source in the LA County district attorney’s office who spoke under the condition of anonymity said that the DA’s office will continue to comply with In re Humphrey, and that the office was not consulted about the changes to the bail schedules. Sources within the LA County public defender’s office were also surprised by the new policy. District Attorney George Gascón’s rules on cash bail are similar to the court’s Emergency Bail Schedule: when he entered office in December 2020, he directed his deputies to stop seeking money bail for misdemeanor, nonviolent, and non-serious felony offenses. Ultimately, the judge decides whether to impose or deny bail, and what amount to set in each case. And judges write the bail schedules in LA County.
The local rules of LA County Superior Court state that the supervising judge must appoint a Bail Committee from judges within the Criminal Division. Each year, the Bail Committee must prepare and revise a “Uniform Countywide Misdemeanor/Infraction Bail Schedule and a Uniform Countywide Felony Bail Schedule.” Those bail schedules are then approved by the court’s Executive Committee. Yet the reasoning behind the Bail Committee’s decision to enact new bail schedules is largely unknown, because it does not hold public meetings or take public comment. In fact, it does not even publicly disclose its membership.
While the 2021 California Court Statistics Report provides some relevant information on each of the 510 judges in Los Angeles County, it contains no information about committee memberships. A guide for individuals to propose changes to the municipal bail schedule directs that requests be sent to “Chair, Bail Committee” — no name is provided. A public records act request by Knock LA is still pending with the LA Superior Court, and it remains to be seen how much information will be released about the Bail Committee and their decision to reinstate cash bail schedules.
It’s also unclear how judges will handle the new bail schedules in the context of In re Humphrey and rising COVID-19 cases, and whether political pressure will erode Gascón’s zero bail policies for nonviolent offenders amidst a conservative recall effort. NBC News obtained an inspection report from mid-June of the Inmate Reception Center (IRC) in downtown Los Angeles, which found that it was already over capacity before the Emergency Bail Schedule was lifted. The report explained that people were “sitting on chairs or sleeping on the floor for hours and hours without access to medication, hot food, or a place to sleep. People with obvious mental illness were chained to tables and benches.”
Bail is supposed to serve as an incentive to show up for court appearances, not a way to punish defendants prior to conviction. A person’s lack of income is not relevant to their flight risk or their danger to the community, and there is no data to support a correlation between zero bail for non-serious, nonviolent offenses, and rates of violent crime in Los Angeles. The only stated motive for the change in court policy is that it was a temporary COVID-19 measure, but COVID-19 continues to spread through LA County.
The Bail Committee’s motives are unclear, and its members are unknown, but the effects of cash bail are no mystery: it means more people in pretrial detention, and more financial strain on families.