State courts temporarily eliminate bail for low-level offenses

Violent crimes would still be subject to conventional bail schedules

The judicial body overseeing California’s state courts has invoked emergency powers to temporarily eliminate bail for people arrested and charged with low-level offenses, as part of a continuing effort to slow the influx of inmates and chances of a COVID-19 outbreak at county jails.

The Judicial Council, headed by Chief Justice Tani Cantil-Sakauye, on Monday unanimously approved setting bail to $0 for misdemeanors and most nonviolent felonies, and specified that the new condition also apply to those being held on bail on such charges.

The new bail standard will go into effect April 13 and will be in effect for 90 days after the end of the state of emergency declared by Gov. Gavin Newsom, the council decided during a conference call. It was Newsom who granted the Judicial Council emergency powers to keep the state’s courts in operation through the pandemic.

Marsha Slough, a Judicial Council member and associate justice in the 4th District Court of Appeal in Riverside who formally proposed the bail item, said it was part of a host of measures to strike “a balance between the health and safety and the rights of defendants, and the courts, and the court workload.”

Slough said bails were being set to $0 to avoid confusion with “no bail” status, a common court term associated with serious offenses ineligible for bail.

Santa Clara County Public Defender Molly O’Neal called the decision “absolutely the right thing to do.” She said it was an essential countermeasure to the council’s March 28 decision to temporarily lengthen arraignment and speedy trial deadlines — and 60-day extensions for jury trials — that critics said risked keeping defendants in jail far longer than they needed to be.

“During these extraordinary times, we cannot unilaterally take away constitutional rights without a parallel acknowledgement that those awaiting adjudication of their criminal cases should not sit in jail with no end in sight,” O’Neal said Monday.

The new bail rule was met with a modicum of caution from police officers. Ben Theriault, president of the Richmond Police Officers’ Association, said he hopes the judges will be watchful of instances where the temporary leniency could be exploited.

“Law enforcement appreciates and welcomes the need to reduce the incarcerated population and flatten the curve during the COVID-19 epidemic,” Theriault said in a statement to this news organization. “However, we hope the judiciary uses its discretion (to ensure the safety of the public) if repeat offenders take advantage of the emergency rule. … After all, judges have the power to alter bail as they see fit to each situation.”

As with many of the council’s other emergency measures — such as vastly expanding allowable remote court hearings and proceedings, including court appearances and arraignments — individual counties already had taken to implementing their own practices responsive to statewide court closures and reductions.

Alameda County Public Defender Brendon Woods noted Monday that his county’s Superior Court last week set bail to $0 for misdemeanors and felonies with a maximum of four years or less time to be

served in prison, with some exceptions.

One area where the Judicial Council was more stringent was setting bail to $0 for violations of misdemeanor probation.

“I think the bail schedule is definitely a step in the right direction statewide because this can eliminate people coming into the jails throughout the state for lowlevel

offenses,” Woods said.

Woods, like many of his public defender peers along with inmate advocates, has pushed for early release of inmates, saying once someone is infected with the coronavirus, it “spreads like wildfire.”

Since the beginning of March, Bay Area counties have worked to reduce jail populations by releasing

hundreds of inmates, mostly pretrial detainees charged with nonviolent crimes and people in the last weeks of jail sentences.

Surrender dates for those scheduled to start jail sentences

have been postponed, and the jails themselves have prioritized violent crimes for booking.

“People didn’t sign up and take a plea bargain, thinking it could result in

a potential death sentence,” Woods said.