Judicial Council to consider ending zero bail, stays of eviction summonses

Members of the California Judicial Council vote today on whether to end three of the 13 emergency rules it put in place two months ago, including setting bail at zero for all misdemeanor and most low-level felonies.

Leaders of the council's six internal committees are recommending the bail schedule be repealed as of June 20.

If approved, local courts will be able to revert to their standard bail schedules after that date unless it's deemed necessary to mitigate the spread of COVID-19.

Along with the zero bail vote, the Judicial Council will consider rescinding Chief Justice Tani G. Cantil-Sakauye's statewide order extending the time for defendants to be arraigned. That change would require defendants to once again be arraigned within 48 hours.

The council will also decide whether to change the sunset date of two rules that stay the issuance of summons and writs of execution in eviction actions and court foreclosures to Aug. 3. These rules were adopted so criminal cases could take priority as courts have had to shift their resources around during the pandemic.

The rules were adopted in early April in response to a statewide stay-at-home order issued by Gov. Gavin Newsom.

Council leaders say some are no longer needed because Newsom has now implemented a four-phase framework for reopening counties and because the California Department of Corrections and Rehabilitation is expected to accept transfers of convicted inmates from jails in all 58 counties by June 19.

"A statewide rule no longer serves our need to be flexible and responsive based on local health conditions," Judicial Council Administrative Director Martin Hoshino said in a statement Monday. He explained that 51 of the state's 58 counties and courts have started a phased, safe reopening.

The zero bail schedule has been criticized by some prosecutors and law enforcement officials as a get-out-of-jail-free pass for criminals. Opponents often faulted the rule by highlighting cases where offenders committed new crimes within hours of their release. Some of them now face federal charges.

"It's not the court's responsibility to control the jail population by releasing these dangerous criminals back into our communities," said Orange County District Attorney Todd Spitzer in May following the rearrest of seven sex crime offenders who were released months early on zero bail.

Spitzer said Tuesday the bail schedule had consequences that were made evident by local crime statistics compiled by his office: Vehicle thefts in Orange County were up 56% in May and 34% in April over the previous year, and the recidivism rate for those released on zero bail was 12%. Spitzer said his office has filed homicide, robbery, narcotics and auto theft charges against some of those who were released and rearrested.

"Crimes were committed that should have never been committed because the people committing them should have been in custody all along," Spitzer said in an email. "It is outrageous to think that someone with criminal charges hanging over their head went out and committed additional crimes. They did it because they had no consequences."

According to the Judicial Council, the zero bail schedule diverted more than 20,000 criminal defendants from county jails. The statewide recidivism rate, however, remained less than 10% during that time, the council said.

"Despite being in uncharted territory, crime rates stayed at historic lows, and the vast majority of people released on the COVID-19 bail schedule did not re-offend," 4th District Court of Appeal Justice Marsha Slough said in a statement Monday.

Eric Schweitzer, a private defense attorney in Clovis and president of California Attorneys for Criminal Justice, said Tuesday that some crimes that qualified for zero bail may have been "overly risky" from a recidivism standpoint. But he said the results of the zero bail experiment will be an informative barometer for when voters decide whether to abolish cash bail in November.

"Surely there have been cases where persons released under the rule committed crimes while out, some heinous, some of the same genres that were alleged in the first instance," Schweitzer said. "But we now know that the alarmist prophesies are completely untrue. If anything, there has been less crime committed by persons released on zero bail than before, when bail was being required to obtain release."

Courts in Alameda County were somewhat ahead of the zero bail curve, having adopted a risk assessment pilot program last year to determine if criminal defendants can be safely released pretrial. San Francisco also did away with cash bail, adopting a similar risk-based program following the election of District Attorney Chesa Boudin in January.

Alameda County District Attorney Nancy O'Malley, who is also president of the California District Attorneys Association, said Tuesday, "The chief justice's emergency order of [zero] bail did strike the right fair balance between public health concerns with COVID-19 and protection of the public."

Gay Grunfeld of Rosen Bien Galvan & Grunfeld LLP, who has represented several classes of inmates seeking compassionate early release during the pandemic, said repealing the zero-bail schedule would be a premature mistake because the virus is still pervasive.

"The more crowded prisons and jails become, the harder it is to practice social distancing and hygiene, our only weapons against COVID-19," Grunfeld said Tuesday. "We need to do everything we can to keep people out of jails and prisons to avoid tragic and needless death and suffering."