Sunday Commentary: Bail Reform Under Scrutiny After Pre-Trial Release of Smash and Grab Suspects – But Why?

LAPD Chief Michel Moore speaks during a news conference to announce arrests in connection with recent smash-and-grab robberies and to provide safety measures and prevention tips at the LAPD Headquarters in Los Angeles on Dec. 2, 2021. MediaNews Group via Getty Images

By David M. Greenwald
Executive Editor

This week LAPD and LA City Officials announced the arrest of 14 people for a string of smash-and-grab robberies.  At the same time, both Los Angeles Police Chief Michel Moore and Mayor Eric Garcetti on Thursday called for ending the county’s $0 bail policy.

The concern was that all of those arrested were out of police custody – some having bailed out while others fit the zero-bail criteria and were released.

The zero-bail policy applies to misdemeanors and lower-level felonies and was instituted as a means of reducing crowding at county jails during the COVID  pandemic.

The concerns expressed by the LAPD Chief however echo complaints about bail reform in general.  They expressed concern about those being let out becoming repeat offenders as they await their case being processed.

Mayor Garetti expressed similar concerns.

“There are people who need to be behind bars,” Garcetti said. “How many times does the same person have to steal a car, three, four or five times, after being released before we realize we have opened up a lot of the city, because we’re in a better place with COVID, we should be able to also open up our jails, and we should be able to have judges that put people behind those bars as well.”

The chief is blaming zero-bail on the increase of auto-thefts for example.

“The people stealing them are the chronic offenders,” Moore said. “And so that’s where the criminal justice system needs to make those adjustments.”

Interestingly enough just two of the 14 caught here have criminal histories.

The issue of bail is complicated and often misunderstood.

Under the US Constitution, people accused of crimes are legally innocent until proven guilty.  Bail is provided as a means to secure release from custody pending criminal proceedings and supposed to be a safeguard to ensure that people make their appearances.

Over time however, bail was increasingly used as a means to incarcerate pretrial people who could not afford bail with higher bails used as a means to de facto hold people in custody pretrial who might be considered dangerous.

The problem of course is it conflated ability to pay with public safety.  People who committed lesser crimes but were poor are held in custody sometimes for months or even years awaiting trial while those who have means can bail out eve4n for serious crimes.

Reformers have recognized this inequity and the California Supreme Court ruled that courts cannot hold people in custody pretrial simply because they cannot afford bail.

The court recognized the balancing act the courts must perform between the right to pretrial liberty with the state’s interest in protecting the public.

From my perspective there should be two conditions under which people should be held in custody pretrial – substantive public safety risk and risk of flight or non-appearance.

Moreover I believe that we have held a lot of people in custody for monetary reasons who really were little or no threat to public safety.  In fact, in a lot of cases, holding people in custody increases a lot of the problems – it costs a lot of money to hold people in custody, each person costing between $50 and $100 thousand per year.

It puts people in economic jeopardy – they lose their jobs, their homes, and distances them from family and support networks.  That studies show actually increases recidivism which increases the chance of more crime down the line.

Public officials are understandably concerned about these flash-mob, smash and grab type offenses.  But one of the critical components to stopping them in the future is the ability to arrest and then successfully prosecute them.

Often these offenses happen because people don’t believe they will be caught.

The idea that they have to then hold the people in custody doesn’t make a lot of sense.  I could see modifying conditions of release to those of standard parole and probation which would require people to follow all laws in order to remain out of custody.

That would allow for the presumption of pretrial release with the caveat that additional crimes may well change that calculation.

The idea that the concern about autothefts or burglaries means that we have to hold people who have not been convicted of a crime in custody misunderstands the nature of our system and what bail should be used to do – insure court appearances.

DA George Gascón, supporter of ending cash bail, has also insisted that smash-and-grab offenders would be held accountable, The Associated Press reported this week.

“Our office has been collaborating with multiple law enforcement agencies and once all the evidence has been gathered, we will review the cases to determine what criminal charges should be filed,” Alex Bastian a spokesperson for the DA told media this week.  “These brazen acts hurt all of us: retailers, employees and customers alike.”

In my view, the key to this is going to be the ability to catch those who commit these crimes and successfully prosecute them – not whether or not they are held in custody pending their trial.

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