As coronavirus tore through jails and prisons across the United States, California reduced bail for most low-level offenses to $0, allowing thousands of defendants to wait out their court dates at home instead of in custody.
The response across the criminal justice system in the state has been disparate, echoing longstanding tensions about reform. Prosecutors in Tulare county have “worked around the clock” to oppose the early release of more than 1,000 defendants, according to the district attorney there. In Los Angeles, leaked emails showed the district attorney’s office instructing prosecutors to seek a loophole in the new bail schedule for some cases. And police unions in cities across California have argued the emergency schedule will lead to an uptick in crime.
Hanging over the bail schedule debate is a referendum in November, when Californians will get to decide whether the state should eliminate its bail system moving forward. The success or failure of the emergency guideline, beyond the infection rate of the state’s inmate population, has the very real possibility of becoming a talking point in all future debates for bail reform for years to come, criminal justice reform advocates say.
“I hope when this is said and done, we can all look back and radically rethink the criminal justice policies that exacerbated this public health crisis,” said Lydia Kives, a staff attorney with the Bail Project, a not-for-profit that provides free bail assistance for thousands of low-income individuals each year. “We should never have had this many people at risk in jail just because they could not afford bail.”
‘Outdated, unsafe, unfair’
The emergency bail schedule issued on 6 April by the state’s judicial council, the policymaking body for California’s courts, works in two parts: those held on bail pre-trial will be released from jail and any people arrested during the course of the pandemic for most misdemeanors and low-level felonies will be held on $0 bail, and thereby released.
Serious and violent felonies such as murder, rape, robbery, assault with a deadly weapon and kidnapping are excluded from the emergency schedule, as well as domestic abuse, violating a protective order and driving under the influence. Judges also retain discretion to keep inmates detained before their trial for good cause, or to put conditions on their release, said Blaine Corren, the public affairs analyst with the judicial council.
Behind the rollout was a sense of panicked urgency as jails and prisons across the country reported alarming clusters of infections among inmates. The top doctor at Rikers Island warned at the start of April that the notorious New York jail was a “public health disaster unfolding before our own eyes”. The Cook county jail in Chicago reported hundreds of infections among its inmates.
But they also followed years of debate around America’s money bail system, which advocates say has created a two-tier justice system that fuels mass incarceration. In California, more than 63% of inmates in the county jail system have not been convicted or pleaded guilty, meaning that the majority of the state’s jail population is incarcerated while awaiting trial. While some may remain in custody due to the severity of the crime that they have been accused of, more remain simply because they cannot afford to pay the bail needed to guarantee their freedom.
Chief Justice Tani Cantil-Sakauye, who chairs the judicial council, previously called the money bail system “outdated, unsafe, and unfair”.
‘It’s not our intent to let people off the hook’
The response to the emergency guidelines has followed the fault lines that have long formed that debate: public defenders cheered it, police unions raised alarms about it. Some prosecutors and courts streamlined the process while others questioned certain releases, creating delays.
“What we’re seeing in this Covid pandemic is an attempt to see people truly as people and get them out of jail so that they don’t get sick, and not let their poverty be a reason why they stay in and risk infection and possibly death,” said Ricardo Garcia, the Los Angeles county public defender. “Under this crisis, it is no longer only people of means who are able to get out of the potentially dangerous environment of jail. Now everyone, including the poor, have the same opportunity.”
Police unions, on the other hand, argue the state is sitting upon a powder keg that is about to ignite. “We’re going to have a lot more victims,” said Paul Kelly, the president of the San Jose Police Officers Association.
Since 5 April, an estimated 3,174 inmates have been released from county jails across California for issues related to Covid, according to the Board of State and Community Corrections. The statewide adult inmate population has dropped from 72,437 in late February to 54,561 in mid April. Bookings into custody dropped from 17,140 to 6,880 during that same time period.
But not all jurisdictions have followed the emergency schedule equally. In San Francisco, where the district attorney, Chesa Boudin, already had a policy in place since January that instructed his prosecutors to not ask for bail, the jail population fell from 1,097 in early March to 701 in mid April. Under $0 bail, Boudin said only in very rare cases – for example, if a defendant had a history of reoffending or if the crime was very serious – would his prosecutors seek a way to keep the person in custody.
“Every level of government is saying we must reduce the prison population, and we must do it quickly and we must do it properly,” Boudin said. “It’s unacceptable for any local jurisdiction to choose not to follow the law when that insubordination puts the health and wellbeing of everyone at risk.”
In Tulare county, a rural region in the heart of the Central Valley, Tim Ward, the district attorney, called the $0 bail “reckless” and “a disservice to victims of crime, business owners, and the community as a whole”. In a statement, his office said prosecutors “worked around the clock” filing motions opposing the early release of more than 1,000 defendants.
In Los Angeles county, where the courts instituted a reduced bail weeks before the statewide order, the jail population has been reduced from 17,076 to 11,883, but it’s unclear how many of those inmates were released because of bail and how many were released through other population thinning efforts.
Jackie Lacey, the Los Angeles district attorney, came under fire earlier when emails leaked showing her office instructing prosecutors to essentially seek a loophole in the new bail schedule. Gina Satriano, a director in Lacey’s office, wrote that if a defendant is cited and released, “but law enforcement brings in for a warrant”, that prosecutors “should use the old bail schedule that lists a dollar amount, otherwise no one would get arrested on that warrant”.
“Keep in mind,” Satriano wrote, “the court may still lower bail to zero.”
The emails, said Kate Chatfield, a senior policy adviser for the Justice Collaborative, a criminal justice advocacy group, were not honoring the intention of the emergency regulations.
Lacey told the Guardian that the email “identified a small loophole”, but only for very limited cases. She pointed at a public integrity case that was nearing the end of the statute of limitations. “Even though we’re not doing those kind of cases right now and the case will probably be heard some time after 1 June, it still needed to be filed,” she said. “If we’re filing for a warrant, we have to have some dollar amount. You can’t have a zero bail warrant.”
But California prosecutors only have to file a complaint to ensure that they do not violate the statute of limitations on a case, and a Los Angeles county prosecutor, who asked not to be named out of fear of retaliation, said it’s not necessary to file a dollar amount on an arrest warrant to file a complaint.
“Right now, with the coronavirus, there are a limited amount of people who are trying to get out of their criminal cases,” Lacey said. “We’re letting people out and putting cases over, but it’s not our intent to let people off the hook for criminal behavior that should be addressed.”
Frustrated officers
Since the start of the pandemic, overall crime and calls for services have gone down across California. The state’s police unions have attributed the decline to the stay-at-home order – with more people indoors, there are fewer potential victims – and think it’s only a matter of time before crime will pick back up, in part because of the $0 bail schedule.
Some law enforcement departments have publicly aired their frustration with the new bail. “Don Joseph was arrested for possession of a stolen vehicle and released from custody per the statewide $0 bail order,” said the Chino Hills police department. “Released on court order zero bail … 37 mins later he walked to Dublin (Bart station) and carjacked victim,” tweeted the Alameda county sheriff’s department.
“People are incarcerated because they did bad actions,” said Craig Lally, the president of the Los Angeles Police Protective League, the LA police union. “People who are in jail are most likely in jail because they did it more than once,” he added, though many defendants held in jails have not yet been convicted, and are there because they can’t afford bail.
Police officers right now are frustrated, Lally said.
“They’re trying to do their job, they’re trying to protect people the best they can, and when they get the criminal elements, and they get the person they’ve arrested before, who have been doing it pretty much their whole lives, you’re never going to reform that person,” Lally said. “That’s the lifestyle that they chose probably since they were 16 years old. They’re never going to change and the only thing you can do is warehouse them.”
John Raphling, a senior researcher with the Human Rights Watch said that while America’s standard approach to criminal justice may be incarceration, the country should rethink its procedures amid a pandemic. “People are getting sick. People are dying. It’s going to stay in the jail and spread in the jail and get sent back outside,” he said.
Raphling pointed out that making the jails safer from an outbreak went beyond reducing the numbers of detainees. Los Angeles county made huge strides in reducing its population from 17,076 to 11,883, but the facility was rated at capacity at 12,000. The county got the population down to just below what the jail was supposed to have at capacity, meaning there would be little room to create physical distancing and isolation and quarantine quarters.
‘It shouldn’t take a global pandemic’
From the response he’s seen so far to the emergency bail schedule, Raphling feels a cautious sense of optimism about the future of bail reform in California.
“There are a lot of things about this disease that have exposed the problems with our society, and mass incarceration, the jailing of people for fairly harmless behavior, that’s a huge problem in this country and hopefully people are seeing that,” he said.
Law enforcement was adamant that whatever occurs under the $0 bail schedule cannot be used in future bail reform discussions. “It’s dishonest,” said Kelly, the head of the San Jose police union. “These misguided judges and the professional apologists for criminals saw an opportunity to utilize Covid-19 to advance their dangerous views on incarceration.”
But Kives, the staff attorney with The Bail Project, emphasized the importance of collecting data right now. “I hope those who question the need for bail reform will look at this dire situation, where cash bail is literally trapping people in overcrowded jails as this deadly virus spreads, and reconsider their position. It’s a matter of justice and public health, and I’m confident that the data on the impact of these emergency measures will be on the side of meaningful reform,” she said.
“The fact is that we shouldn’t have so many people held in jails awaiting trial or court hearings,” Kives continued. “It shouldn’t take a global pandemic to highlight the public health argument for decarceration, but that’s where we are, and I hope it’s a wake-up call.”