Los Angeles County Superior Court Overhauls Cash Bail System
Soon, it will be harder to be jailed for the “crime” of being poor.
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Last summer, the Los Angeles County Superior Court ended its COVID-19 Emergency Bail Schedule, which set bail at $0 for most nonviolent offenses. That decision was made by the court’s Bail Committee, a group of criminal law judges tasked with making annual revisions to the felony and misdemeanor bail schedules. The Bail Committee does not hold public meetings, and it does not disclose minutes or internal communications — on the basis of “judicial deliberation privilege.”
A year later, LA County Superior Court has announced a new pretrial release system and movement away from a “wealth-based approach,” signaling a dramatic shift in the Bail Committee’s perspective on cash bail.
Presiding judge Samantha P. Jessner attributed the shift to the experiences of the last three years and to extensive empirical research on cash bail, including a recent Judicial Council of California study showing that “risk-based release decisions that are not reliant on money bail result in increased public safety — a 5.8% decrease in rearrest/rebooking for misdemeanors and a 2.4% decrease in rearrest/rebooking for felonies.”
The new system does not eliminate cash bail for violent and serious offenses, and it does not entitle arrestees to release without conditions. Instead, there are now four different categories: Cite and Release (CR), Book and Release (BR), Magistrate Review (MR), and cases that are ineligible for any pre-arraignment release, like capital offenses.
Law enforcement agencies already often cite and release people at the time of arrest, or book and release people from the booking station after an arrest is made. The new bail schedules indicate that nonviolent crimes like petty theft and vandalism are eligible for CR or BR.
More serious offenses, like sexual battery, possession of a loaded firearm, or felonies committed while on parole or community supervision will require MR, and the arrestee will be held in custody until their arraignment in front of a magistrate judge. Release may be contingent on “text reminders about court appearances, check-ins with court staff, home supervision and electronic monitoring,” as deemed necessary. Or release may be denied if the risk to the public is deemed too high, or if the risk of the individual not returning to court is deemed too great. MR will be available 24 hours a day, seven days a week, but it is unclear how quickly arrestees will actually be brought before a judge.
It is also unclear whether magistrate judges will receive new guidance for how to evaluate a person’s risk level, and how much discretion they will have to grant or deny release. When a California state measure to end cash bail lost at the polls in 2020, some criminal justice advocates were relieved because they felt requirements for increased pretrial surveillance and risk assessment tools were no better than the money-based alternative.
Those tools are “based on algorithms that ‘learn’ more about risk profiles as more data about criminal defendants is entered into them,” but some criminal justice researchers warn that “someone’s risk of being rearrested can be as much about policing decisions and the color of their skin as that person’s actual conduct.” Others “worry the computer programs currently available will be overly broad in interpreting risk and unnecessarily keep throngs of defendants, many of them poor and minorities, behind bars.”
The new bail schedules and new CR/BR/MR tiered system won’t be implemented until October 1, but recent litigation has reverted LA County’s bail schedules to the COVID-19 Emergency Bail Schedule until further notice. The case that prompted this revision, Urquidi v. City of Los Angeles, is a class action lawsuit representing six plaintiffs who were held in custody for days solely because they could not afford bail. Some plaintiffs were never even formally charged with a crime but still lost job opportunities, access to medication, and shelter placements while incarcerated.
The court’s bail announcement cited a May 16 decision in Urquidi, which held that “enforcing … secured money bail schedules against poor people who are detained in jail solely for the reason of their poverty is a clear, pervasive and serious constitutional violation.” The lawsuit names LA City and LA County as defendants, as well as the Los Angeles Police Department and the Los Angeles County Sheriff’s Department. This means that the dozens of other law enforcement agencies in LA County are still operating under the bail schedules adopted last year that require cash bail for low-level, nonviolent offenses, and will continue to do so until October 1.
Brian Hardingham, an attorney for Public Justice and member of the Urquidi litigation team, says the new pre-arraignment bail schedule “rightly acknowledges that money bail is not only unjust, but bad for public safety.”
He also shares other advocates’ concerns about risk assessment algorithms, telling Knock LA that they “rely on (a) past convictions, themselves influenced by racial disparities in policing and prosecution, and (b) often-inaccurate or incomplete information about prior reports of failure to appear.”
Following Urquidi, some LA prosecutors and conservative commentators have claimed that moving away from a cash bail system will hurt public safety and create a “revolving door” of consequence-free crime. These statements either misunderstand the purpose of pretrial detention, or deliberately obfuscate it. A person on pretrial release still faces a trial unless they plead guilty, and they face potential incarceration and a criminal record if convicted. Under both Urquidi and the new bail schedules, violent and serious crimes like domestic violence and rape will still require cash bail as a precondition of release, as will crimes committed while already under supervision on another case.
Los Angeles has not eliminated cash bail, like Illinois recently did, and next year’s race for LA district attorney will no doubt reignite debate about its use. For now, one thing is certain: it will be harder to be jailed for the “crime” of being poor.