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    Now that LA County courts have eliminated cash bail for most offenses, what happens next?
    • October 15, 2023

    Los Angeles County Superior Court officials are closely watching the rollout of zero-bail to track whether the controversial policy is properly balancing equity for the accused with the need to uphold public safety.

    Executive officer David Slayton, in an interview, said the courts plan to publicly release data on the effectiveness of the policy later this month, but early results from the first two weeks appear to suggest the policy is working as intended.

    “Individuals who are higher risk to the community are either being released with conditions, or being held for arraignment because there are no conditions where they can be safely released,” he said. “They are being considered not based upon their money, but based upon their risk.”

    L.A. County’s “Pre-Arraignment Release Protocols,” commonly referred to as zero-bail, eliminates the financial requirements for release from all but the most serious of offenses prior to arraignment. Police officers will instead cite and release, or book and release, suspects for a majority of misdemeanors and some felonies. Serious and violent crimes, such as murder, kidnapping, robbery and assault with a deadly weapon, are not eligible and still retain previous bail amounts.

    Other offenses, such as burglary, will require a magistrate to review the case to determine if someone can be released safely. Police officers also can request what is called an “upward bail deviation” to ask for magistrate review on any felony or in misdemeanor cases involving violation of a domestic violence restraining order, Slayton said.

    Tracking rearrest rates

    The courts are tracking rearrest rates and failures to appear and will use that and other data to inform future adjustments to the zero-bail policy, he said. Technical changes already have been made based on requests from law enforcement agencies.

    Proponents say the county’s elimination of cash bail will alleviate instances where someone is held, potentially for days, solely because of their financial ability.

    Even a single day in jail can cost people their jobs, their children and even their lives, supporters argue. A 2022 report by the UCLA School of Law’s Bail Practicum and Berkeley Law’s Policy Advocacy Clinic found that roughly 80% of jail deaths in California occur during pretrial detention. The poor state of Los Angeles County’s jails have led to consent decrees and settlements.

    “They’re really horrific conditions that people are being held in,” said Alicia Virani, co-founder of the bail practicum and co-author on the UCLA report, which reviewed the impact of a 2021 California Supreme Court ruling concluding it is unconstitutional to set bail at unaffordable amounts.

    More than 30 people have died in Los Angeles County jails so far this year, she said.

    The pretrial incarceration of a primary breadwinner “can destabilize an entire family and an entire community network,” Virani said.

    Criminals emboldened, critics say

    The new policy’s detractors, meanwhile, worry that zero-bail is emboldening criminals, reducing the faith police officers and victims have in the judicial system, and leading to upticks in crime by putting suspected criminals back on the streets immediately.

    More than a dozen Los Angeles County cities have joined a lawsuit attempting to reverse the policy. Attorneys for the cities, including Whittier, Downey, Beverly Hills and Arcadia, argue the Superior Courts have balanced the system too heavily in the favor of offenders, so much so that “victims and public safety are given a zero value.”

    That case was transferred to Orange County Superior Court earlier this month and is still pending.

    Zero-bail policies discourage law enforcement officers and do not make neighborhoods safer or reduce crime, said prosecutor Eric Siddall, the former vice president of the Association of Deputy District Attorneys, which represents about 800 Los Angeles County prosecutors.

    “If they arrest someone, it is the equivalent of a parking ticket,” said Siddall, among a slate of prosecutors campaigning to unseat reform-minded District Attorney George Gascon in the 2025 election. “They tell the suspect to come to court in three months or six months. It’s not a deterrent.”

    With an existing backlog of about 13,000 felony cases that have yet to be filed by the Los Angeles County District Attorney’s Office, Siddal said, most defendants arrested for nonviolent and nonserious crimes will never appear before a judge.

    The policy might alleviate jail overcrowding, but the trade-off is more criminals on the street, he said.

    “Criminals generally know the legal system better than law enforcement officers and prosecutors,” he added. “They know if they commit certain types of crimes they will be released.”

    No clear link on crime rates

    While studies have shown that rearrest rates were unaffected when the state implemented the Emergency Bail Schedule, which similarly eliminated bail for most offenses during the pandemic, Siddall said there is no clear link between the policy and any declines. Crime dropped in general in certain jurisdictions and officers might simply have stopped rearresting suspects who were released into the public because of the lack of consequences, he said.

    “We don’t know,” he said. “But to suggest that releasing criminals back onto the street somehow decreases crime defies logic and prior studies.”

    Last year, the Yolo County District Attorney’s Office produced its own study showing that 420 of 595 of the individuals released on zero bail there were subsequently rearrested, with 20% committing a violent crime. A follow-up study earlier this year once again pointed the finger at zero-bail when it declared that Yolo County saw increases in every category of crime as a result.

    Proponents of zero-bail argue that Yolo County was not an empirically rigorous study. Report from courts and state agencies throughout the country, including in California, have found the opposite.

    “The new policy isn’t a radical change, it builds off of similar policies that were in place in Los Angeles during the pandemic over the last three years,” said Claire Simonich, associate director of Vera California, an advocacy group fighting over-criminalization and mass incarceration. “If you look at other jurisdictions, we have every reason to believe this is not going to result in an increase in rearrests.”

    In July, the Judicial Council of California found that similar policies during the pandemic resulted in a 5.8% decrease in rearrests for misdemeanors and a 2.4% decrease in felonies. Those same categories remained at, or below, historic averages in Los Angeles County, too, according to Slayton, the county courts’ executive officer.

    “We were not surprised by the judicial council’s overall findings, because the data was consistent with what we’ve seen locally,” he said.

    Rearrests in Los Angeles County dropped from 40% in 2020 to 29% in 2022, the year the emergency bail schedule ended.

    Judge sparked policy change

    In May, a judge issued an injunction that effectively reinstated the emergency schedule for both the Los Angeles County Sheriff’s Department and the LAPD. Roughly two months later, the Superior Court’s Executive Committee adopted the zero-bail policy that ultimately went into effect Oct. 1.

    Other states and counties have not seen increases in crime either after implementing similar policies. New Jersey, which implemented bail reform in 2017, found that “nearly all defendants released successfully completed their pretrial period without acquiring a new charge, with the rate of rearrest for very serious crimes at less than 1% annually since 2018,” according to a report to the legislature.

    New York, Kentucky and Harris County, Texas, boasted of similar successes.

    “I think the data, when we have it, shows the opposite of what the fear-mongers would like us to believe,” said Virani of UCLA’s bail practicum. “All of this together shows that we do know how to do this.”

    Political backlash

    Regardless, politicians in New York and New Jersey have faced fierce backlash for those policies. New York, in particular, has dialed back its reforms several times in response to widespread concerns that it has led to upticks in crime. California’s own attempts to implement bail reforms have fared even worse. After the Legislature passed SB 10, which would have eliminated cash bail in 2018, voters dismantled it through a referendum, Proposition 25, just two years later.

    Though local lawmakers have little to do with the Superior Court’s implementation of zero-bail, they already are feeling that heat as well.

    “I can’t be the only one that’s having my office inundated with calls, and, when I’m out publicly, I have people approaching me very concerned about this,” county Supervisor Janice Hahn said during the board’s Sept. 26 meeting.

    Sheriff Robert Luna, who spoke out on behalf of victims at the same meeting, explained the fears.

    “If your child was poisoned by fentanyl and you found that someone was caught selling it in your neighborhood, and they’re released a few hours later without bail, you might question if the system is fair or not,” he said. “If you’re the victim of organized retail theft, and, you know, even if the individuals who stole from your businesses are caught, they will not be held or even required to post bail, you are also going to question the system, and probably get very angry at a lot of us sitting in this room, because they think we’re not holding people accountable.”

    The Los Angeles County District Attorney’s Office and the LAPD both have spoken out against the policy. In a statement, LAPD Chief Michel Moore explained that law enforcement is averse to zero-bail because “that approach offers little to no deterrence to those involved in a range serious criminal offenses.”

    The imposition of higher bail amounts achieved the goals of safety, deterrence and prevention, he said.

    “We will continue to speak with the L.A. County Judicial Council as they strive to strike the appropriate balance in protecting community safety and victims from further harm, without unduly withholding an individual from their release back into the community,” Moore stated.

    Gascon supports zero-cash bail

    The District Attorney’s Office, in a statement, said prosecutors have yet to see data from the first few weeks of zero-bail, but that concerns raised by Chief Deputy District Attorney Sharon Woo at the Sept. 26 meeting haven’t been addressed by the courts. At the time, Woo said her boss, Gascón, supports the idea of eliminating cash bail for 80% to 90% of the offenses in the new policy, but he is against the inclusion of certain offenses, such as burglary, and worries about the county’s ability to impose specific conditions of release, such as electronic monitoring and substance abuse treatment.

    Though crime ticked up overall in Los Angeles from 2021 to 2023, it has largely stayed flat, or decreased, in the past year. As of Sept. 30, the LAPD has reported a 6.8% decrease in violent crime and a 1.6% increase in property crime compared to the same period last year. The Sheriff’s Department, meanwhile, as of Aug. 30, saw a similar 6% decrease in violent crime and roughly 1% decrease in property crime year to date.

    Yet, brazen crimes, such as organized retail smash-and-grabs, have become so prolific that the state issued $267 million in grants to assist law enforcement just this year.

    Under the new zero-bail policy, organized retail theft is classified as a “book-and-release” offense. The Los Angeles Police Protective League blamed the elimination of cash bail for a series of flash-mob style thefts in August, saying criminals were emboldened because they knew they’d be out of jail immediately if they got caught.

    Slayton scoffed at the idea that zero-bail removes consequences. The policy just removes money as a determining factor.

    Someone arrested for a smash-and-grab, for example, will be booked and the crime will be visible to police departments through the county’s booking system. Officers can always request a bail deviation from a magistrate if they believe the individual poses a higher risk of committing more crimes, or if they are aware of other pending charges, he said. All information provided by law enforcement is considered.

    Once arraignment is held — up to 30 days later for released defendants — a judge can remand a defendant to custody, or impose  monetary bail, he said.

    “We believe that an individualized assessment of the individuals is constitutional, complies with the judges’ statutory responsibility and is better for the community,” he said.

    Bail review ‘cursory’

    The cities suing to stop zero-bail, however, argue most cases will not involve a magistrate and, when they do, it is a “cursory review of electronic records only, by an on-call judge, relying on rote risk assessment factors, based solely on the bare nature of the charges — without additional facts of the actual crime committed or victims harmed — and based on an arrestee’s criminal history, which does not include repeat offenses that are not convictions,” according to their petition.

    The lawsuit highlights an incident in Whittier where a man arrested for having a loaded firearm was released following a magistrate’s review and then went on to assault a police officer, unprovoked, hours later.

    Proponents generally support the idea of more eyes on cases before arraignment, but they say it remains to be seen how the magistrates, who are Superior Court judges, will wield that power. Court decisions that expanded judges’ discretion often have led to more holds, not less, they said.

    Still, for those who have been pushing for reforms for years, the Superior Court system’s strong stance against cash bail is a positive sign, said Brian Hardingham, senior attorney for the Debtors’ Prison Project at Public Justice, the nonprofit legal advocacy group that sued Los Angeles County and won the injunction that reinstated zero-bail earlier this year.

    “A lot of this is going to come down to the details,” he said. “We’re encouraged by the general direction this is going in and paying close attention.”

    ​ Orange County Register