In Major Blow To LA County's Cash Bail System, Judge Issues Injunction Limiting Bail Prior To Arraignment
A superior court judge Tuesday issued a preliminary injunction against Los Angeles County’s practice of requiring cash bail from jailed people who have yet to be arraigned, dealing a major blow to a system long criticized as favoring the wealthy and doing little to make the public safer.
About the ruling
Judge Lawrence Riff called the practice “a clear, pervasive and serious constitutional violation.” He issued the ruling in a lawsuit that seeks to end the use of cash bail.
Noting that both sides say they’ll be ready to go to trial in 12 months, Riff said, “[f]idelity to the United States and California Constitutions cannot abide the delay of a year in remediating at least some of this constitutional harm now,” he wrote. “Indeed on this substantial record, it would be an abuse of the court’s discretion not to enter a [preliminary injunction].”
He gave the county, California, and the group of civil rights attorneys who filed the lawsuit 60 days to come up with alternatives, which could include releasing people on their own recognizance or with electronic monitoring or some other type of supervision.
In the meantime, Riff ordered cash bail only be required for people accused of serious or violent felonies and select misdemeanors, including domestic violence.
A similar order was issued during the pandemic to reduce the population in the jails, which were considered to be potential vectors of the virus. The move contributed to a dramatic temporary drop in the number of people behind bars.
Riff’s order could affect tens of thousands of people who are incarcerated every year for several days after their arrest simply because they can’t afford bail, a situation that often threatens their jobs and family life, according to the lawsuit. People of color are disproportionately represented in L.A. county and city jails.
In his ruling, Riff said he had asked two main questions during hearings on the case: would issuing a preliminary injunction increase crime, and would it increase the likelihood of people failing to appear for court dates?
“The plaintiffs have produced a vast amount of evidence … [including] more than a dozen academic studies, that decisively shows the answer to these questions is ‘no’,” Riff stated in his ruling. “Their evidence has demonstrated that it is highly likely that the opposite is true: secured money bail regimes are associated with increased crime and increased [failures to appear] as compared with unsecured bail or release on non-financial conditions.”
An argument that bail is unconstitutional
“Every day, Los Angeles County and the City of Los Angeles confine hundreds of people — people who have not been convicted of any crimes, are presumed innocent, and are not yet represented by counsel — in jail cells based on their inability to pay the arbitrary, pre-set amount of money required for their release,” plaintiffs said in their class-action lawsuit.
The lead plaintiff is Phillip Urquidi, who was living in his pickup truck when he was arrested on suspicion of vandalism last November. Urquidi, 25, was kept locked up for five days before he appeared before a judge because he could not afford the $20,000 bail or the 10% of that amount required by a bail bondsman.
The district attorney ended up declining to file charges against Urquidi.
The lawsuit cited the due process and equal protection clauses of both the U.S. and California constitutions, calling such detentions the “unconstitutional detainment of indigent arrestees.”
These individuals are not detained on the basis that they are too dangerous to release: the government would release them right away if they could pay. Rather, they are too poor.
“These individuals are not detained on the basis that they are too dangerous to release: the government would release them right away if they could pay,” the lawsuit stated. “Rather, they are too poor.”
The lawsuit names the city and county of L.A., which both operate jails. Sheriff Robert Luna, LAPD Chief Michel Moore and California Attorney General Rob Bonta are also named.
How bail works
Cash bail is ostensibly used as a way to guarantee an individual will return for hearings and/or a trial. The money is returned if you show up for your court appearances. If not, it’s forfeited to the government.
Those who can’t afford the full bail amount — and that includes most who are arrested — can pay 10% to a bail bonds company that will put up the rest of the money. The bail bonds firm keeps the 10%. Critics say that amounts to imposing a fine on a person who has not been convicted of a crime.
Those who can’t afford to pay 10% of the bail amount must remain behind bars. Of the roughly 13,400 people currently held in L.A. County jails, about half have not been convicted of any crime but could not make bail. An estimated several hundred of those have yet to see a judge.
When you’re arrested, the arresting agency or sheriff’s deputies who run the county jails refer to a “bail schedule” to determine how much you have to pay to get out. A panel of superior court judges determines the schedule annually in each county.
For example, if you’re accused of residential burglary in L.A. County, bail is $50,000.
The bail schedule allows for higher bail for various reasons. If you allegedly committed the burglary with a gun, that’s an extra $50,000. Here is the 2022 bail schedule.
When you are arraigned, a judge can raise or lower your bail based on your record and arguments from prosecutors and defense attorneys.
Allegations of inhumane jail conditions
Plaintiffs in the L.A. case make another argument — that people held in county jail before their arraignment are subject to “inhumane conditions.”
People “remain at constant risk of physical and sexual abuse in County jails — an environment described by the U.S. Department of Justice as ‘dimly lit, vermin infested, noisy, unsanitary, cramped and crowded,’” the lawsuit states. “Many receive no medical care.”
One possible fix: speed up arraignment with judges working overnights and weekends to determine if bail should be required. That would require prosecutors and public defenders to work odd hours too.
Supporters of cash bail have said any alteration to the current system could mean the release of dangerous people, although crime trends have been the same in jurisdictions with and without bail reforms.
Halting efforts at bail reform
The plaintiffs' attorneys hope the preliminary injunction will lead to the end of cash bail entirely, noting judges can detain someone for a limited set of serious cases where dangerousness is proven in court. Judges may also impose supervision like weekly check-ins or electronic monitoring.
In addition, the attorneys point to studies that show court reminders like text messages are more effective than bail in ensuring people show up for future court appearances.
Eric Siddall, vice president of the Los Angeles Association of Deputy District Attorneys, argued that “the solution isn’t zero-bail and it isn’t oppressive bail. It’s reasonable bail or release conditions, narrowly tailored to the defendant and the offense and aimed at ensuring that arrestees return to court if their cases get filed.”
For years, cash bail has been a major target of criminal justice reform advocates around the country. They’ve had some success in recent years, but some reforms have also been rolled back.
In 2018, a new California law ended cash bail and allowed judges to decide whether to release suspects awaiting trial by consulting an algorithm that ranked defendants from low- to high-risk of flight or danger to the community.
But the law never took effect. The bail bonds industry gathered enough signatures to place a referendum on the law — Proposition 25 — on the Nov. 2020 ballot, and voters repealed the law by defeating Prop. 25. Some criminal justice reform advocates, including the ACLU of Southern California, joined the bail industry in opposing Prop. 25, because the civil rights group believed the risk assessment tool judges would have used doesn't filter out racial bias.
In March 2021, the California Supreme Court ruled that setting bail at an amount a person cannot afford to pay is unconstitutional. But an Oct. 2022 report by the UCLA and UC Berkeley law schools found no evidence that the decision has made cash bail more affordable or decreased the use of pretrial detention.
“All of the records and data we received point to the alarming conclusion that many judges are not following the mandates of the Humphrey decision,” said Rachel Wallace, clinical supervisor at the Berkeley Law Policy Advocacy Center. “Greater transparency around judicial decision-making and increased efforts towards judicial training are key to ensure judges are following the Humphrey standard.”
When he took office in 2020, L.A. County District Attorney George Gascón issued a directive telling his prosecutors to no longer seek cash bail. He revised that policy in 2022 and now allows “limited exceptions.”
New York and New Jersey enacted bail reforms in recent years only to see them partially rolled back amid concerns about rising crime — even though there is no clear link between crime rates and the end of cash bail.
Washington D.C.is one of the few jurisdictions in the country that have gotten rid of cash bail entirely.
'Caging people because they are poor'
One study of Harris County, Texas — the third-largest county in the U.S. — found that in misdemeanor cases, pretrial detention because someone cannot post bail poses a particular problem because “it may induce innocent defendants to plead guilty in order to exit jail, potentially creating widespread error in case adjudication.”
Another study by researchers from the University of Pennsylvania and University of Virginia Law School found “no evidence that financial collateral has a deterrent effect on failure-to-appear or pretrial crime.”
Several religious leaders and organizations signed onto the lawsuit as taxpayers, including Clergy and Laity United for Economic Justice.
“They bring this lawsuit as a taxpayer with the goal of protecting Plaintiffs and the public by ending Defendants’ illegal and wasteful expenditure of public funds on their harmful and unconstitutional cash-based jailing policy,” the lawsuit states.
“Ultimately, this is an act of caging people because they are poor,” Rabbi Aryeh Cohen said at the time the case was filed last November. “This violates the basic demands of what it means to be a just and caring society,”
The lawsuit was filed by a group of longtime civil rights lawyers from Civil Right Corps, Public Justice, Hadsell Stormer Renick and Dai, and Munger, Tolles and Olsen.
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