The end of pre-arraignment cash bail in L.A. County

Civil Rights

Brad D. Brian, Rowley J. Rice, Rohit K. Singla, Victoria A. Degtyareva, Tiana Baheri, Brianne Holland-Stergar & Taylor Benninger, Munger Tolles & Olson LLP; Salil H. Dudani & Alec G. Karakatsanis, Civil Rights Corps; Brian A. Hardingham & Leslie A. Bailey, Public Justice; Brian D. Olney & Dan L. Stormer, Hadsell Stormer Renick & Dai

During the pandemic, most people arrested in L.A. County on low-level, non-violent charges were released without having to post any cash bail. But as restrictions eased, the Superior Court reinstated the previous bail schedule, which required new arrestees to pay a set amount based on their alleged crime or else go to jail -- before ever appearing in court.

"That is not legal in our country," said Brad Brian of Munger Tolles & Olson. In May last year, he and several lawyers from private and public interest law firms won an injunction against that bail schedule and ending the practice of jailing many people in the county based merely on their ability to pay. Urquidi v. City of Los Angeles, 22STCP04044 (L.A. Super. Ct., filed Nov. 14, 2022).

It has long been "the prevailing practice in California and elsewhere of jailing people simply because they don't have access to an arbitrary amount of cash," said Salil Dudani of Civil Rights Corps, one of the attorneys who litigated the injunction. The Washington-based organization considers the practice "a kind of moral emergency because not only is that kind of cash-based detention plainly unconstitutional, it's also devastatingly harmful," he said.

Thanks to the attorneys' efforts and to a decision by L.A. Superior Court Judge Lawrence P. Riff, that practice has largely been ended in L.A. County.

Brian argued and won a temporary restraining order blocking the bail schedule in November 2022. At the TRO hearing before L.A. Superior Court Judge David S. Cunningham III, he presented several plaintiffs who had been arrested and jailed prior to being arraigned. Several of them were later released without any charges being filed. "To me, it demonstrated not just that the system is backward, but also ... the abuse of the system of incarcerating people that are later not even charged with a crime."

The hearing on the preliminary injunction spanned more than 15 court days from February through May 2023, according to Munger Tolles' Rowley Rice. "It was really, in many respects, a drawn-out trial on the constitutional merits of these issues," he said.

At that hearing, the attorneys focused on disproving the "myths" that "that money bail incentivizes a person to appear in court and ... discourages a person from committing crime while out on release," Dudani said.

The truth is exactly the opposite. When people are jailed even just for a few days, they may lose jobs or housing or access to healthcare, he said. Empirical evidence proves that jailing someone "even on a short-term basis ... destabilizes their lives" to such an extent that the person is more likely to commit crimes, not less, Dudani said.

Evidence at the hearing included a "wealth of statistical evidence from Harris County [Texas] confirming and proving that public safety is increased when you do bail reform," he said.

In fact, midway through the hearing, attorneys for the defendants conceded that the plaintiffs had shown a likelihood of success on the merits of the constitutional violation. "Which is an extraordinary concession in a case seeking a preliminary injunction," Brian said.

Then, the focus shifted to determining the remedy. In October, the Superior Court issued a new bail schedule using categories such as cite and release, book and release, and magistrate review.

The lawsuit specifically named the LAPD and the county sheriff's department. However, "the Superior Court has latched onto the injunction in this case and used it as a spur to make changes" at all the other police departments across the county, said Brian Hardingham of Public Justice, another attorney in the case.

Now throughout the county, "people arrested for most nonviolent offenses don't have to pay money bail ... before their first hearing in court, at which time a judge will decide their bail," Dudani said.

-- Don DeBenedictis