Los Angeles' bail system unjust, unconstitutional
This month, the leaders of Los Angeles have the opportunity to join other jurisdictions that have reformed or eliminated the deeply troubling cash bail system. If they don't, the courts should act to address a flawed and disturbing bail system that simply keeps those without resources in jail without any public safety benefit.
Consider the example of Terilyn Goldson, a former paralegal, arrested on November 9 for an alleged vehicle offense. Her bail was set at $75,000. Because she could not afford even a fraction of that amount, she was separated from her family and kept in a cold, windowless cell for days, without a hearing or an attorney. Once Ms. Goldson was finally brought to court, the L.A. District Attorney declined to file charges and she was ordered released — after five days of wholly unnecessary confinement.
Sadly, this case isn't unique. And if city and county leaders refuse to reach an agreement, the Los Angeles County Superior Court will hold a hearing later this month in a class action lawsuit by Ms. Goldson and other plaintiffs challenging the constitutionality of Los Angeles' “bail schedule.” This system assigns a price to freedom based only on the arrest charge, not accounting for the strength of the evidence (or lack thereof) against a particular person, their likelihood of returning to court, public safety considerations, or any other individualized factor. This bail schedule conditions freedom on nothing more than a person's ability to pay.
As a former federal prosecutor, a constitutional law scholar and a former judge, we know that this system is not only unconstitutional but also undermines public safety by inflicting vast collateral consequences on individuals, many of whom will ultimately not even be charged with a crime. In fact, one out of every six arrests by the Los Angeles Police Department never leads to formal charges. People remain behind bars for days only to have a court decide at their first appearance that there was no good reason to jail them in the first place.
This unnecessary pretrial detention can have devastating effects. In fact, numerous studies across the country show that jailing people pre-trial for low-level offenses can actually increase the likelihood of future criminal activity. This is not surprising, as even a few days of pretrial detention can cost people their jobs and their housing, disrupt treatment and other supports, and destabilize the lives of individuals and their families for years to come. Children are especially vulnerable: when their parents are behind bars, kids face traumatic family separation and face a higher risk of experiencing homelessness and foster care.
Money bail also subjects those too poor to purchase their freedom to dangerous and often life-threatening conditions. Some in LA County jails have been chained to benches for days, without access to their medications or adequate food and water. Others must sleep under 24-hour fluorescent lighting on floors covered in garbage, urine, and feces. And we have seen tragic loss of life, with nearly 300 deaths in L.A. jails from 20092018, often under concerning circumstances. Things have only gotten worse; from 2016 to 2021, LASD in-custody deaths more than doubled, with 55 in 2021. And a recent ACLU filing seeks to hold the County in contempt for these appalling jail conditions.
Research has consistently disproved any professed justification for detaining people based simply on their inability to post bail. Indeed, extensive evidence shows that money bail does nothing to improve court appearance rates when compared to other less restrictive alternatives. L.A.'s own experience shows that simple steps, like sending court reminders, are more likely than money bail to ensure court appearance. And numerous studies have repeatedly shown that bail reform has not led to increases in crime.
In short, there is no excuse for perpetuating this failed bail system. Courts across the state have already recognized this practice as unconstitutional. The California Supreme Court ruled that it is illegal to jail a person solely because they cannot pay cash bail. And federal courts in San Francisco and Sacramento have already struck down the exact same bail schedule policy at issue here.
Instead of spending resources battling the pending lawsuit, local officials should be working with the plaintiffs to find solutions. And we have ample models for how to do better. During the pandemic, the state court imposed an emergency bail schedule that set bail at $0 for many misdemeanors and low-level felonies. At a minimum, local leaders should come together and agree to return to that starting point even as this case is being resolved longer term.
In New York City, reminder texts reduced missed court dates by 26%. And data from Los Angeles County found that housing supports offered by the Office of Diversion and Reentry (ODR) boosted court appearances and reduced rearrests — at a lower cost to the county than jail.
Unfortunately, ODR's programs remain underfunded. Meanwhile, on any given day, the county drains public resources by locking some 14,000 people behind bars—most of whom have yet to be convicted of any crime and would be released right away if they could afford to pay.
Los Angeles officials can act today to end this exploitative bail system; if they don't, the courts must do so. The Constitution demands it. Public safety benefits from it. And our community deserves it.
Miriam Aroni Krinsky is the executive director of Fair and Just Prosecution, a former federal prosecutor, and the author of Change from Within: Reimagining the 21stCentury Prosecutor. Erwin Chemerinsky is dean of the UC Berkeley School of Law. Anthony Kline is the retired senior presiding justice of the California Court of Appeal.