Rule 4 rescission: untethered from reason

Ironically, in a vote cast by email to ensure their own safety in the midst of the COVID-19 pandemic, the California Judicial Council voted 17-2 on Wednesday afternoon to rescind the emergency order that "required," depending on where you practice, that bail be set at $0 for most people accused of lower-level, nonviolent crimes, absent a showing of danger to the community or other circumstance warranting pretrial detention.

On April 6, the Judicial Council had passed emergency "Rule 4," aimed at reducing jail populations to keep the coronavirus from spreading through overcrowded jails and courtroom cages. Since then, the number of cases in jails has increased. And we're not out of the woods yet; on Monday, the San Bernardino Courthouse closed unexpectedly when members of the district attorney's office tested positive for the deadly virus. Judges and court staff are quarantined. But thanks to the reduction of the jail population as a result of Rule 4, far fewer individuals became infected and died. It's possible that thousands who are alive today would not be, but for that order.

And there's more. Just as the majority of social scientists and criminologists surmised, since the implementation of Rule 4 (otherwise known as "it's about time"), crime rates have not skyrocketed, but in fact, declined. So if the timing of the vote to rescind Rule 4 seems curious to you, you're not alone.

Of course, there has been something of a misinformation campaign by a few local prosecutors and sheriffs who long for the 90s-era "tough on crime" political chum that played so well, but, like Hammer pants, has mostly been left to the dustbin of bad ideas. They have spewed hyperbolic descriptions of anecdotal evidence, obscuring that few of the more than 22,000 released under Rule 4 went on to commit another crime. The opposing argument, of course, is data-driven and boring. It's impossible to be hyperbolic when describing crimes which did not happen.

In the wake of recent events, it is impossible to ignore the tectonic shift in attitudes about the need for criminal justice reform. There has been an awakening to the generational harm of mass incarceration. It is no longer just academics and defense attorneys; the public at large, has at long last begun to recognize the inequities which turned our criminal justice system into an injustice system for those who were, largely as the result of systemic racism, simply too poor to purchase their own pretrial release.

In announcing a Rule 4 rescission that is utterly untethered from reason, the chief justice offered a wholly unsatisfying addendum: "Judges will retain the flexibility to grant zero bail." Mmhmm. While it is hoped that at least some of the presiding judges will retain the $0 presumptive bail, courts, after all, as Chief Justice Warren Burger noted, are a "slow, painful and often clumsy instrument of progress." 