Editorial: No, criminals aren't rampaging across California because of our zero-dollar bail policy
Editor’s note: This editorial is the first in a series of three. The second and third parts will be published on Thursday and Friday at latimes.com/opinion.
Amid the stay-at-home orders that have helped to push California’s declining crime numbers even lower, some sheriffs, police and prosecutors are complaining that certain pandemic-related measures are preventing them from doing their jobs and, as a result, are endangering the public. They back their claims with stories of suspects who are arrested but then immediately released, ostensibly because police are now powerless to hold them, only to commit new crimes — sometimes even later the same day.
These critics use well-worn, tiresome and utterly false terms to describe their supposed predicament. Judges, they say, have ordered “early release” or issued criminals “get out of jail free” cards. Criminals are “laughing at us.” Instead of catching crooks, police must resort to “catch and release” because their “hands are tied” by leftist reformers pursuing “socially progressive goals.”
This is all bunk.
The latest object of the law enforcement establishment’s scorn and anxiety is the state Judicial Council's zero-dollar bail order. Issued April 6, it resets to zero the presumptive bail amount for people arrested for misdemeanors and many nonviolent felonies.
The order makes perfect sense. It keeps jails from filling up with suspects who haven’t been convicted of anything and who pose little danger to the public if they are sent home with instructions to come to court on the appointed date. That’s crucial at a time when jails have become infection hot spots due to inadequate hygiene and lack of social distancing.
Police and prosecutors conveniently fail to mention that the order allows them to detain suspects, just as before, if they can convince a judge that releasing the person would pose an unacceptable risk to public safety.
The Judicial Council order is very clear on this point. But just in case there was any lingering doubt, an April 29 Court of Appeals ruling from San Diego nailed it down: Defendants can still be held without bail on a judge’s order. Cops and prosecutors just have to get the defendant to court and then make a persuasive case against release. Despite the assertions of some district attorneys that they would have to wait weeks for a regular bail hearing, a judge is available in every California county, 24 hours a day, seven days a week, to sign warrants, issue emergency orders and prevent the release of dangerous suspects.
The only difference is that suspects can no longer be held or released based on how much money they have or can raise for bail. Poor suspects can no longer be held without a showing that they pose a danger. Rich suspects can still get out, just like before — but only if they are acceptable risks, not because they have money.
Police and prosecutors who still complain that zero dollar bail ties their hands apparently didn’t get the memo. Or they got it but didn’t read it. Or they read it but didn’t understand it. Or they understood it just fine but didn’t like it, because they realize it means they can no longer bank on a defendant’s poverty as a means to keep him or her locked up. To take away the liberty of a person accused (but not convicted) of a nonviolent crime, they will now have to actually make the case to a judge.
That’s not some bizarre “socially progressive goal,” despite Orange County Dist. Atty. Todd Spitzer’s argument in a recent Orange County Register op-ed. It’s the presumption of innocence — a fundamental principle of justice that predates the founders and was recognized by the Supreme Court early in the nation’s history as a basic constitutional protection.
The order has also freed some defendants who had been locked up for months because they couldn't afford their pre-pandemic bail amounts. But those releases don't override decisions of judges to keep defendants in custody, despite claims by San Bernardino County Sheriff John McMahon in a video statement. No judge had ordered that these defendants be kept in custody in the first place. Quite the opposite — the judges heard the arguments, considered the evidence and ordered the defendants to be released on bail, although at amounts that proved to be beyond their means.
Nor do the repeat offenses by car thieves and other career criminals, including multiple arrests on the same day, make the case against zero-dollar bail, despite the assertions of Los Angeles Police Chief Michel Moore and other law enforcement leaders around the state. Repeat offenders are obviously high risks to commit more crimes, and as the Court of Appeals made clear, zero-dollar bail does not require “cite and release.” Bring them to a judge. Seek a detention order.
Nor is eliminating money bail for people accused of misdemeanors and nonviolent felonies in any sense “early release,” despite arguments by numerous critics in law enforcement. Release is arguably “early” only when a convicted person leaves incarceration before his or her sentence is completed. Again, zero-dollar bail applies to people who've merely been accused.
Spitzer’s characterization of the Judicial Council as a bunch of social progressives is laughable. The council is headed by Chief Justice Tani Cantil-Sakauye, a cautious, deliberative and politically centrist former criminal prosecutor who served as legal affairs secretary to a Republican governor and was appointed to three judicial positions by three different Republican governors (and who is married, by the way, to a retired law enforcement officer). Most council members are judges, and the overwhelming majority of them were appointed to the bench by Republicans. These are not social experimenters.
In fact, criminal defense lawyers and progressive activists were deeply disappointed by the Judicial Council’s order, which they had hoped would indeed grant the kind of blanket release that so many cops and prosecutors falsely claim it does. Many activists rally around the call to #FreeThemAll — in other words, empty and close jails and prisons, and not necessarily because of the pandemic. There’s an important discussion to be had about reducing incarceration in the United States, but the extremely modest and sensible zero-dollar bail order hardly falls under that topic.
We’ve heard these sorts of outlandish, fear-mongering claims many times before, often because law enforcement leaders set in their ways could not grasp how to do their work without the excessively punitive laws and procedures to which they had become accustomed.
When responsibility for felons convicted of nonviolent crimes was "realigned" in 2011 by Assembly Bill 109 — that is, shifted from state prison and parole to county jail and probation — prosecutors and police told stories (too often unexamined by news media) of “AB 109ers” who committed heinous crimes because of “early release” from prison (although the law did not cause the release of a single prison inmate). A leading candidate for governor dropped out of the race after it became clear that realignment had no role in releasing the supposed string of 109ers on which he was basing his campaign.
When voters passed Proposition 47 in 2014 and reclassified smaller-level crimes of theft and drug possession as misdemeanors rather than felonies, prosecutors and police said they were powerless, for example, to arrest a suspect on suspicion of possessing a stolen gun because the weapon was worth less than $950, the new cutoff for felonies. Nonsense.
When voters adopted Proposition 57 in 2016 and permitted prison inmates to earn parole by participating in rehabilitation programs, critics again said crime would skyrocket. But all along, crime has plummeted.
California has thoughtful prosecutors, police and judges who keep careful watch on the criminal justice system and make well-considered adjustments, sometimes in response to voter demands and sometimes in response to emergencies, such as the COVID-19 pandemic. But it also has those who don’t quite keep up to date, or who didn’t read or understand the memo. Their voices are loud, and they are warming up for two backward-looking November ballot measures that they hope will scrap bail reform and roll back the other landmark improvements to the state’s criminal justice system in the last decade. COVID-19 lends them the wisp of fear and anxiety that is necessary to spur reactionary attacks on justice. Californians should demand better from their top cops and prosecutors.