California’s Judicial Council moved Monday to set bail at zero for most misdemeanor and lower-level felonies in an attempt to limit the spread of the coronavirus in jails statewide by reducing the number of inmates.
During a meeting by teleconference, the council approved 11 temporary emergency rules designed to ensure public safety in the courts and jails while preserving civil rights.
The rules, which take effect immediately, also allow local courts to set up remote hearings via teleconference technology and for counsel to appear on behalf of defendants in pretrial proceedings — as part of a bid to limit the number of people in courtrooms.
The council also adopted rules to prioritize juvenile proceedings and extend the statute of limitations for civil proceedings.
Two other changes allow electronic depositions in civil cases and extend time frames for certain temporary restraining orders.
As Chief Justice Tani G. Cantil-Sakauye opened the session, she said the group was working swiftly, but deliberately.
“(We are) trying our best to preserve rights and ultimately preserve lives,” Cantil-Sakauye said. “We are at this point truly with no guidance in either history, law or precedent. And to say that there is no playbook is a gross understatement of the situation.”
The council’s first vote was to suspend foreclosures and evictions statewide, as a way to reinforce Gov. Gavin Newsom’s executive order to delay such actions against California renters and homeowners.
All the rules came at the request of Cantil-Sakauye, the council chair, and by recommendation of the chairs of six internal committees.
“The Judicial Council should take these temporary actions in order to protect the health and safety of the public, court employees, attorneys, litigants, and judicial officers, as well as staff and inmates in detention facilities, and law enforcement during the state of emergency related to the COVID-19 pandemic,” Cantil-Sakauye stated in her request.
More than 100 comments on the proposals were received from judges, public defenders, prosecutors, law enforcement, unions and members of the news media.
Los Angeles County District Attorney Jackie Lacey praised the move to reduce bail statewide, noting that Los Angeles County implemented a similar measure last week.
“I applaud the chief justice and the Judicial Council for adopting a statewide zero bail for people charged with most misdemeanors and low-level felonies,” Lacey said.
“In Los Angeles County, we implemented a zero-bail measure last week that allows us to further reduce the number of people in county jails and courthouses. I appreciate the collaboration among criminal justice leaders in Los Angeles County that has resulted in the rapid deployment of new and innovative approaches as we work to try to stop the spread of COVID-19 in our community.”
Former San Francisco District Attorney George Gascon, who will face Lacey in a runoff in November, said the virus has accomplished what criminal justice advocates and research studies could not.
“The novel coronavirus has forced our system of justice to confront a not-so-novel question, one that largely defined the criminal justice reform movement even prior to the pandemic: Does keeping huge numbers of people in-custody on small-time offenses pose a greater threat to us all than letting them out?” Gascon asked.
“This virus does not care if you’re a prosecutor, victim or a defendant. Innocent or guilty, this virus can still kill you.”
The president of the Los Angeles County Public Defender Union, Nikhil Ramnaney, called the change to bail schedules statewide an important step. But he also noted that it applies only to new cases.
“It still leaves thousands of people in local custody throughout the state who were arrested and had bail set prior to the amendment,” Ramnaney said.
“We need to make sure that these people — charged with identical offenses and who do not pose any risk to public safety — are expedited for release. We believe that cash bail is clearly discriminatory against indigent persons and these discriminatory effects have been especially demonstrated during the emergency.”
Orange County District Attorney Todd Spitzer said the council should have allowed pretrial services professionals to do a risk assessment on some zero-bail cases, because some of the defendants may have prior strikes.
“They didn’t do any risk assessment here,” Spitzer said. “They should use detention release staff to look at the dangerousness (of some defendants). I think that’s very shortsighted.”
Spitzer pointed out it was wise to set the bail at zero, because if the defendants commit a crime while out of custody they can be charged with committing a crime while out on bail. That wouldn’t be possible if they were released on their own recognizance.
Spitzer also said the new rules should have allowed for remote hearings in every case.
The complaints of some defense attorneys who worried about Sixth Amendment issues by not being in the same room with their client and able to have confidential talks with them during a hearing could be cured by either having the attorney and defendant together behind the same camera in a teleconference hearing or by handing a cellphone to a defendant to talk to the attorney in private, Spitzer said.
Spitzer said he was pleased that the council allowed a judge discretion to continue a preliminary hearing if a defendant refuses to waive time.
“If a defendant says, `No, I’m not waiving time because of the pandemic, you have to bring me over to a courtroom,’ the judge can consider specific situations and find good cause over the defendant’s objection,” Spitzer said.
This was the second emergency meeting of the Judicial Council in response to the coronavirus outbreak.
Even before the earlier meeting, Cantil-Sakauye took action on March 23 to suspend all jury trials in California’s superior courts for 60 days to allow courts to immediately adopt new rules to address the impact of the COVID-19 pandemic.
Also on March 23, Los Angeles County Superior Court Presiding Judge Kevin C. Brazile signed an order restricting access to all Los Angeles County courthouses to judges, commissioners, court staff and authorized people — including members of the media — until further notice, while also mandating social distancing of at least 6 feet.
Two days later, Los Angeles-based unions representing prosecutors, public defenders and city attorneys called for a complete closure of local courts, claiming the mandate was not being followed and blasting the superior court’s failure to accommodate appearances by phone and video conference.
Implementation of the new rules depends on local courts and may differ in various jurisdictions. Ensuring that teleconferencing technology is secure is one hurdle cited by a spokeswoman for the Los Angeles Superior Court.
Multiple members of the council also acknowledged that more changes were likely as conditions change and that the full range of concerns will not be addressed overnight.
“We recognize that these rules don’t even begin to solve all the problems,” Associate Justice Marsha G. Slough said.
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