Judge blocks the use of pre-arraignment cash bail in LA

LOS ANGELES (CN) — A Los Angeles County Superior Court judge on Tuesday blocked the city and county of Los Angeles from demanding cash bail from arrestees who haven't yet been arraigned.

The decision, sure to send shockwaves through the world of law enforcement, comes in the form of a preliminary injunction, and effectively bumps Los Angeles back to its 2020 Covid-era policy of "zero cash bail," in which those arrested for low-level crimes were released without bail while they waited to be arraigned by a judge, who would then set a cash bail amount.

"The plaintiffs have shown that these defendants' conduct in enforcing the secured money bail schedules against poor people who are detained in jail solely for the reason of their poverty is a clear, pervasive and serious constitutional violation," Judge Lawrence Riff wrote in a 64-page ruling. "The parties estimate they will be ready for a trial on the merits in about 12 months. Between now and then, tens of thousands of persons will be arrested by the LASD and LAPD and jailed under the extant bail schedules solely because they are too poor to pay the scheduled money bail.

"It would be an abuse of the court's discretion not to enter" a preliminary injunction, he added.

The injunction is set to take effect on May 24th at 12:01 a.m. It does not apply to those arrested for violent felonies or certain serious misdemeanors, such as domestic violence or stalking, or to those who have an open, unresolved case or are the subject of an arrest warrant. Those rearrested while out on zero bail will be held under the old cash bail schedule.

"It’s a great day, not just for our clients but for Los Angeles," said one of the plaintiffs' attorneys, Salil Dudani. "The judge explained in detail not only that it’s unconstitutional to put someone in a jail cell just because they don’t have a certain amount of money in their bank account, but also that it’s bad for public safety and it harms everyone."

The long-awaited decision comes after a marathon hearing that took place, on and off, over the course of nearly two months and saw live testimony.

The putative class action, Urquidi vs. Los Angeles, was filed by a pair of nonprofit public interest law firms this past November on behalf of six people who had recently been jailed and who couldn't afford to pay their pre-arraignment bail. Bail is set according to a predetermined formula called a bail schedule, and determines whether or not an arrestee is detained prior to being arraigned — typically the first time the accused goes before a judge or gets access to a public defender. Upon arraignment, the judge sets a new bail amount, and according to a 2021 California Supreme Court decision, that judge must take into account the arrestee's financial means when setting the bail amount.

The plaintiffs say pre-arraignment cash bail violates the spirit of the Supreme Court decision and discriminates against those who can't pay. They also argue that those who are jailed for the 3-5 days while they await arraignment are harmed in myriad of ways — they miss work days, stop taking medication and aren't able to care for sick family members.

Curiously, the defendant city and county were reluctant to argue the merits of cash bail, offering the most tepid of defenses to the system. That's most likely a reflection of the elected officials they work for, most of whom are liberal Democrats who support criminal justice reform. Most law enforcement officials, meanwhile, support the use of cash bail.

At one point in the hearing, the judge asked Assistant City Attorney Gabriel Dermer: "Are you aware of any evidence arguing in favor of the efficacy of money bail?"

"No," Dermer replied. "The city isn’t going to defend money bail, because the city didn’t institute money bail."

A spokesman for the city attorney declined to comment on the ruling. A spokesman for the LA County District Attorney did not immediately respond to an email requesting a comment.

During the hearing, the defendants contended that the police and sheriff's departments were simply following state law and adhering to a bail schedule set by superior court judges. At the start of the hearing, the defendants asked the judge to add the state of California as a defendant, a request that was granted, though the state has yet to make its first appearance or say whether or not it will fight ruling.

At various points, the city said that LAPD Chief Michael Moore might testify. Instead, the city and county called lower level law enforcement officials to testify about pre-arraignment detention.

Judge Riff appeared to agonize over the decision, and all but begged for one of the parties to speak for the "broader public interest," which he said was a "mandatory consideration for any preliminary injunction."

In his decision, Riff wrote that he found the evidence put forward by the plaintiffs convincing, especially when compared to the lack of evidence put forward by the defendants. As to the all important question of whether a return to zero cash bail would increase crime and the rate at which arrestees appear for their arraignment, he wrote that the plaintiff's evidence had demonstrated "that it is highly likely that the opposite is true: secured money bail regimes are associated with increased crime and increased [failure to appears] as compared with unsecured bail or release on non-financial conditions."

"What's more, the evidence demonstrates that secured money bail, as now utilized in Los Angeles County, is itself 'criminogenic' — that is, secured money bail causes more crime than would be the case were the money bail schedules no longer enforced," Riff added.

Eric Siddall, Vice president of the LA County prosecutors' union, called the ruling "bizarre."

"It’s bizarre that you’re going to declare something unconstitutional that was created by your colleagues," Siddall said, referring to Judge Riff and the Superior Court Judges who create the bail schedule. He added: "It’s always bad to make public policy decisions on a sample of five cases."

Last week, nonprofit Crime Survivors, Inc., filed a motion to intervene. But on Tuesday, Judge Riff ruled the group can't intervene on an emergency basis, though it may be allowed to do so later. The lawyer representing the group, Mike Gatto, a former state lawmaker whose father was murdered in a 2013 home invasion robbery, said he was disappointed in the judge's decision not to let the group intervene.

"The perspective of crime survivors is important in any reform that affects the judicial system," Gatto said. "Judge Riff himself noted that he was severely handicapped by what was the record before him. The record before him was not adequate because the government defendants had completely failed to defend this case."

As part of the judge's order, the county, city and plaintiffs will have 60 days to come up with a "different pretrial detention regime."

A 2018 law passed by the California Legislature replaced cash bail with an algorithmic risk-assessment tool, which advised judges on which arrestees to release based on the danger they posed to the community or the possibility that they might not show up for their next hearing. But two years later, a voter referendum struck down the law. A large number of progressive activists supported the referendum because they opposed the use of an algorithm.

"Well-functioning jurisdictions like New Jersey and Washington, D.C. release the vast majority of people after arrest," said Dudani. "For many cases, there should be immediate release. There should be actually effective services and supports to help people show up to court."

Riff's preliminary injunction is only the end of the beginning of the case. The state of California may be added as a defendant, and Crime Survivors, Inc. may be allowed to intervene. The case could proceed to trial in as soon as a year from now. The county and city could also choose to settle the case.

"It’s my hope that rather than spend taxpayer money fighting this case, the government will work with us to create a better system," Dudani said.

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Judge blocks the use of pre-arraignment cash bail in LA

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