DAs may push own law after zero bail bill is withdrawn

The California District Attorneys Association may introduce its own bail revamp bill next year, according to the organization’s legislative director. The news came after Sen. Robert Hertzberg, D-Van Nuys, withdrew his latest zero bail bill as the Legislature finished its session Friday.

State lawmakers also did not extend an eviction ban before the legislative year ended, though this likely won’t have much short-term effect on legal cases over eviction bans.

These developments appear to be rare victories for Republicans in Sacramento, though both issues are likely to be front and center again when the Legislature reconvenes in January.

Hertzberg announced on Thursday that he was withdrawing his zero bail bill, SB 262, for the year. It can be taken up again when the Legislature reconvenes. Hertzberg is an attorney and has fought for years to change the state’s bail system.

“We made real progress this year. … We’re not done yet with bail — not even close,” Hertzberg said in the news release.

“We think that was the right decision,” said California District Attorneys Association Legislative Director Larry D. Morse II on Friday. “The CDAA has been on record for many years supporting bail reform. I think most DAs recognize bail is a regressive measure. But this bill was fatally flawed in our view. As we’ve noted, it had exemptions and loopholes you could fly a 747 through, and no mechanism to verify anybody’s finances.”

Morse said the group’s members have been in discussions about changes that could make it less likely people would spend time in jail merely for the lack of ability to pay while keeping truly dangerous criminals behind bars. He added that he has the “highest regard” for Hertzberg, who engaged in discussions with his group this year, though they ultimately could not agree.

An arraignment on Tuesday may have sealed SB 262’s fate. Prosecutors say Troy Davis murdered and sexually assaulted a Sacramento woman, Mary Kate Tibbits, 61, on Sept. 3, killed her two dogs and set fire to her house. Davis was paroled after assault and robbery convictions in 2017 and 2018. He was arrested on charges of auto theft in June, but released without bail and later failed to appear for a court date.

The Judicial Council released guidance calling for zero bail for many crimes last year between March and June to bring down jail populations in the face of the COVID-19 pandemic. Some district attorneys have opposed these policies. One of the most vocal has been Sacramento District Attorney Anne Marie Schubert, who is challenging Attorney General Rob Bonta next year. Her office has been tracking arrestees released on zero bail. A Schubert spokeswoman, Shelly Orio, announced Friday that of the approximately 5,100 people released on zero bail in Sacramento County since March 2020, about one-third have been re-arrested, some repeatedly.

“In June 2020, the Sacramento Superior Court adopted its own zero bail schedule, following the recommendations of the Judicial Council,” said a statement issued by Schubert. “This zero bail schedule allowed for zero bail on all misdemeanors and many felonies, including certain gun crimes. … There are several cases where individuals have been released on zero bail and have been re-arrested for serious and violent crimes.”

Sacramento County Superior Court Deputy Director Kim Pedersen confirmed on Friday that in June 2020, the court adopted the bail schedule recommended by the Judicial Council. She said the policies appeared to help bring down COVID-19 infections in county jails. The court adopted a new bail schedule in May, before Davis’ arrest, though it kept zero bail for many crimes.

California also will not extend its eviction moratorium past Sept. 30. The big story of the end of session one year ago was lawmakers’ frantic scramble to come up with legislation to protect cash-strapped renters and landlords harmed by the pandemic — and to do so in the face of a historic budget shortfall.

This eventually resulted in an eviction moratorium lawmakers extended multiple times, most recently in June. Assembly Speaker Anthony Rendon, D-Lakewood, said at the time he hoped there would be no need for a further extension. There are several court challenges to state and county eviction bans. But the attorney who filed a federal complaint last month seeking to block the state ban said he and his clients will still move forward with their case. Paul J. Beard II, a partner with FisherBroyles LLP in Los Angeles, said the ban violated the takings and contract clauses of the U.S. Constitution. California Rental Housing Association v. Newsom, 2:21-cv-01394-JAM-JDP (E.D. Cal., filed Aug. 5, 2021).

“The fundamental issues are capable of repetition and evading review,” Beard said in an email Friday. “Were it otherwise, government entities could just pass ‘temporary’ (unconstitutional) measures – every two months – and evade judicial review.”

Tenants may get more tools to defend themselves in what many predict will be a rush of unlawful detainer cases. The Assembly passed AB 1487 on a mostly party-line vote on Thursday. If signed by Gov. Gavin Newsom, it would create a Homelessness Prevention Fund to help provide legal defense for renters, among other services. The bill did not specify a dollar amount for the program, but it would be administered by the State Bar’s Legal Services Trust Fund Commission.

“As pandemic related protections begin to expire, our eviction defense program will address one of the root causes of the current crisis and help prevent homelessness before it begins,” the bill’s author, Assemblyman Jesse Gabriel, D-Woodland Hills, said in a news release.