LOS ANGELES (CN) — Legal advocates asked a Los Angeles County Superior Court judge to block the use of pre-arraignment cash bail for arrestees during a marathon 2 1/2-day hearing that ended — or rather went on hiatus — Monday afternoon.
The judge has yet to rule on the request for a preliminary injunction that could have a monumental impact on criminal justice in LA County, though he did agree to a motion by defendants LA city and county to add the state of California as a defendant.
The class action filed this past November by six Angelenos who'd been been jailed within the previous five days before the filing includes lead plaintiff Phillip Urquidi, a 25-year-old who was living in his pickup truck when he was arrested on suspicion of vandalism and held on $20,000 bail. A number of religious leaders also signed onto the suit as plaintiffs.
When someone in California is arrested for a serious offense, he or she goes to jail and is given a cash bail amount by the arresting agency. The bail amount in LA County is determined by preset formula called a "bail schedule" written by a panel of LA County judges. For example, according to the 2022 bail schedule, the crime of residential burglary carries a preemptive bail of $50,000. Certain circumstances increase the bail — the arrestee used a weapon when committing the alleged crime (another $50,000 for a gun, or $200,000 if the gun was discharged but no one was hurt), for instance.
Two to five days later, the arrestee gets a lawyer and is arraigned, at which point a judge sets a new bail amount.
"The majority of arrested individuals who cannot post the cash bail amount have no hope of release until they are brought before a judicial officer at arraignment," the plaintiffs say in their complaint. "Arraignment typically does not occur until somewhere between two and five days after arrest."
Those extra days in jail, the plaintiffs say, put arrestees "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.'”
In March 2021, the California Supreme Court unanimously ruled judges must take a detainee's ability to pay into consideration before setting bail amount. But LA County's bail schedule doesn't do that.
"There is a period of time that people are jailed by the defendants solely on the basis of their lack of access to money," said Salil Dudani, an attorney at Civil Rights Corps, on the second day of the hearing.
Lawyers for the city and county appeared reluctant to defend the use of prearraignment cash bail, insisting they are simply following state law. They spent much of the time arguing the plaintiffs are suing the wrong people.
"The sheriff cannot set bail," said Dimitri Portnoi, outside counsel for LA County. "Only judges may set bail. That’s why the bail schedule is set by judges."
LA County Superior Court Judge Lawrence Riff agreed to add California to the list of defendants in part, he said, because he was desperate to have someone advocate on behalf of the "public interest."
"I am concerned about the lack of a party in court advocated on behalf of the public interest," Riff said. "The preliminary injunction that the plaintiffs are asking for — I haven’t seen anybody advocating on behalf of that public interest, and I think the state of California has to be joined for that."
The plaintiffs' attorneys argued they were speaking for the public interest, and not just arrestees.
"This system is untethered to public safety or likely appearances at trial," said plaintiffs' attorney Brad Brian. "It does the reverse."
Brian argued there are better ways to ensure arrestees don't commit other crimes — making a decision about whether or not to release arrestees based on risk assessments. And as for getting them to show up for court appearances, he said text message reminders could be effective. He said that New Jersey and Washington had largely eliminated cash bail, and the jurisdictions still have "very high appearance rates." He also pointed to the first two years of the Covid pandemic, when most arrestees were not detained pending arraignment.
Both the city and county — both of which have heavy Democratic constituencies and politicians who support criminal justice reform — were hesitant to push back on such arguments.
"What shall I make of that," Riff asked. "If in fact public officials elect not to say anything in opposition of this preliminary injunction?"
A strangely circular hearing, the judge posed numerous hypothetical questions for both parties — "Could the defendants voluntarily agree to such an injunction?" he asked a befuddled county lawyer at one point — at times wondering if he should recuse himself from the case, whether it was even possible to sue over bail schedules, which are drawn up by judges, and repeatedly asking lawyers if they'd like to call witnesses as part of the proceedings.
In one particularly surreal moment, Assistant City Attorney Gabriel Dermer revealed that LAPD police chief Michael Moore was "willing to testify."
"This really is an extraordinary case," Dermer said. "The chief is against zero bail. But LAPD has nothing to do with bail."
Riff noted he was "being asked to make a very fundamental change in custody arrangements, prearraignment" and asked whether Chief Moore actually wants to testify
"Yes," Dermer answered, after some hesitation.
The plaintiffs argued a few extra days in jail could have devastating consequences to those already living at the margins — a missed day of work, a no-show for a job interview, a few days without medication, a few days where the arrestee can't take care of a family member in need. At times, Brian said, family members must spend everything they have just to afford a bail bondsman's fees.
"We have a system that hurts families, hurts children," Brian said. "We believe the public will benefit if funds are not being spent to enforce this unconstitutional system."
Of the six named plaintiffs in the case, three were released on their own recognizance after arraignment. One was never charged. One had his bail reduced, and one had his bail increased. Brian argued this shows the bail schedule is too strict and rigid, and unfairly forces poor people to serve an extra few days in jail when, more likely than not, a judge would let them go free pending legal proceedings.
"I find the declarations of the arrestees powerful and moving," the judge said. "Mr. Dirdani told me this injunction would be in the public interest, because it would remedy constitutional wrongs. But what about the rest of society? That is the concern that I have."
He ordered the plaintiffs to amend their complaint, adding the state to the suit and tailoring their legal argument, and told both sides to submit briefs on various matters. The hearing will reconvene Tuesday, and will continue from there. It's unclear if the court will hear live testimony.
"I don’t think we’re beating a dead horse here," the judge said toward the end of the day Monday. "I know we're spending a lot of time."
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