California about to end 2-month experiment with zero bail

"What would a state look like without bail?" was once the kind of theoretical question asked by academics. But California has had a real world test of the concept for more than two months.

The experiment is coming to an end, however. The Judicial Council voted 17-2 Wednesday to let the emergency order suspending most cash bail expire on June 20.

The policy has allowed most people arrested for misdemeanors and low-level felonies to go free without forking over cash or contracting with a bail bondsman.

The two "no" votes came from the legislative members of the council: Assemblyman Richard Bloom, D-Santa Monica, and Senate Judiciary Committee Chair Hannah-Beth Jackson, D-Santa Barbara.

The suspension of most bail was among 11 emergency policies passed by the council on April 6 in response to the coronavirus pandemic. The change also occurred against the backdrop of a larger debate on the future of bail in the state.

There is an ongoing battle between those who want to end the use of cash bail permanently, and those who want to keep the current system. Not surprisingly, these groups have very different views of how well California's two-month experiment with zero bail has turned out.

Supporters of cash bail have tended to point out instances in which people released without bail have gone on to commit other crimes.

"We expressed serious concerns about the impact of zero bail as we felt it would result in inappropriate early release of potentially dangerous offenders and those who would continue to re-offend if not held accountable," said California Police Chiefs Association President Eric R. Nuñez.

The council released a statement Wednesday claiming the policy kept more than 20,000 people out of crowded jails at a time when the virus was spreading fast. The dangers the virus poses to some incarcerated people was illustrated on Thursday morning, when the Department of Corrections and Rehabilitation announced the 13th and 14th Covid-19-related deaths among thousands of state prison inmates.

The Judicial Council statement also claimed "crime rates stayed at historic lows" while the zero bail policy has been in place. But numerous reports and studies have also pointed out crime started dropping steeply in March when various stay-at-home orders went into effect, weeks before the zero bail policy. For instance, the Los Angels Police Department reported a 14% decrease in violent crime in the city during March.

The Judicial Council's statement also quoted council member Marsha G. Slough, who said individual courts will still have the option keep the zero bail schedule.

"We urge local courts to continue to use the emergency Covid-19 bail schedule where necessary to protect the health of the community, the courts and the incarcerated," said Slough, a justice on the 4th District Court of Appeal. "We are also asking courts to report back by June 20 on whether they plan to keep the Covid-19 emergency bail schedule, or another reduced bail schedule."

In 2018, then-Gov. Jerry Brown signed SB 10, a bill that would have phased out the use of cash bail in California, but it is on hold pending a fall referendum.

Jeff Clayton, the executive director of the the group behind the referendum, the American Bail Coalition, said he was "pleased" by the vote.

"It is absolutely clear that the statewide zero bail schedule had an extremely negative impact on public safety in many cases throughout California, and there is absolutely no indication that it had any impact on containment of COVID-19," Clayton said in an email.

SB 10's author, Senate Majority Leader Bob Hertzberg, D-Van Nuys, praised the zero bail policy when it was implemented, saying it would protect not only inmates but jail guards and other law enforcement officers. His office declined to comment on Thursday. Hertzberg is scheduled to speak at a rally in Sacramento today opposing the referendum, hosted by the #EndMoneyBail Campaign.

The movement against bail has gained support from some high-profile public sector attorneys in the Bay Area. Just days after taking office in January, San Francisco District Attorney Chesa Boudin announced his prosecutors would stop seeking cash bail.

Public Defenders Manohar P. Raju in San Francisco and Brendon D. Woods in Alameda lobbied council members to vote against rescinding the policy. Woods has linked the higher death rates of black people due to Covid-19 to his reasons for keeping the policy. In a statement released Tuesday he noted the population of Alameda's 3,489-bed Santa Rita Jail is nearly half black even though the county is 10% black.

Reached on Wednesday, he also linked bail to the worldwide protests sparked by the police killing of George Floyd in Minneapolis.

"Do Judicial Council members watch the news?" Woods said by email. "There's a nationwide uprising against systemic racism, and the council chooses this moment to give counties permission to return to the mass pre-trial incarceration of Black and Brown people. Now my only hope is that judges here in Alameda County do better and decide to continue with our local version of the emergency bail schedule."