Emergency zero cash bail may give data for doing away with the system altogether, others say it will encourage crime

The statewide zero bail order for misdemeanors and some felonies could provide important data for the effects, good and bad, of a future cashless bail system.

The temporary emergency rules from the Judicial Council take effect today and remain for at least three months after the emergency is over in an attempt to “safely reduce jail populations” during the COVID-19 pandemic.

Civil rights attorney Dewitt Lacy of the Law Offices of John L. Burris said “it is a bold move” by Chief Justice Tani G. Cantil-Sakauye and he hopes the Legislature will consider making it permanent.

Lacy said if anything could be gained from the crisis, it would be the potential for empirical data and evidence on the effectiveness of a system which eliminates cash bail for certain crimes.

“There will be data and information that allows us to come to the conclusion this is not some far off dream but can be easily developed if we just have the political will to do so,” Lacy said.

However, Harmeet Dhillon of Dhillon Law Group Inc. in San Francisco, who has represented bail bond businesses, said the effects of a zero bail system will last a long time in the form of increased crime, even if the order is only in effect a few months.

Eric Siddall, vice president of the Association of Deputy District Attorneys said the order contains a drafting error that if not fixed, could lead to defendants accused of violent crimes such as violating their parole of domestic violence crimes, to be released without paying cash bail. He said this is a particular concern as people are spending more time at home together.

The council’s order included 13 exceptions to the chief justice’s zero cash bail order, with the intent to continue the existing bail schedule for violent crimes.

“However, a drafting error in her order regarding post-conviction violations creates ambiguity,” Siddall said. “It is unclear whether misdemeanors that fall into one of the 13 exempted categories that she specifies, including domestic violence, should remain under the bail schedule.”

The order states in the section entitled, “Bail for violations of post-conviction supervision,” that under the emergency bail schedule, “bail for all violations of misdemeanor probation, whether the arrest is with or without a bench 5 warrant, must be set at $0.”

This means someone who has committed a parole violation for a misdemeanor crime such as domestic violence would also be able to pay no bail to be released.

“I can’t think of a more serious crime right now than domestic violence, when people are stuck at home together,” Siddall said. “So I don’t think they meant to leave this loophole because it is not in the spirit of the order or even in some of the language of the order. However, the way that it is drafted right now would require a judge to do a lot of mental gymnastics to get to the intent of the order, so they need to fix it.”

The no cash bail order “doesn’t consider the effect on the general law abiding population,” Dhillon said in an email. “There has been an increase in break-ins to businesses that are locked up; people stealing with impunity, etc. We are going to see the long-term effects of increased crime from recidivists let out of jail with little to no restriction for years to come.”

Echoing some of Dhillon’s concerns, Jeffrey Clayton, executive director of the American Bail Association, said the emergency guidance will lead to “an endless revolving door” for recidivist criminals who will take advantage of the order.

“If you want to go to a store in California right now and take whatever you want, you can do that every day until this order is over,” Clayton said in a phone interview. “I’m not criticizing them for trying to do something during the emergency, and obviously we’re not talking about the guy who is being falsely accused, but the reality is that once criminals figure this out, the people who have a record a mile long are going to know that not only will I not get arrested but I will be released no matter what, and even when the emergency is over, I still have 90 days.”

Lacy’s view is different, “Historically and traditionally, the cash bail system has been used as a tool to unfairly and unjustly jail the poor,” he said in a phone interview. “Since they do not have the means to pay or post bail and they are then subjected to custody in jails and often times prison after the trial occur, merely for the lack of financial means.”

It remains to be seen how the coming months will affect Californians who vote in November to either keep or overturn Senate Bill 10, the 2018 law designed to phase out cash bail in the state.