State Judicial Council Drops Bail to Zero for Most in Move to Blunt COVID-19

By Crescenzo Vellucci
Vanguard Sacramento Bureau Chief

SACRAMENTO – Progressive reforms sought for decades – the dissolution of bail to minimize the number of incarcerated in jails, and consideration for those facing eviction and foreclosure by monied landlords and banks – were made possible, at least for now, Monday when the State Judicial Council approved temporary emergency rules to combat the threat of the COVID-19 pandemic.

An emergency rule reducing bail to zero for misdemeanors and most felonies, with few exceptions that relate to violent offenses, could well serve to safely reduce populations so they don’t turn into new COVID-19 hotspots in California, said the Judicial Council.

The no-bail rule takes effect April 13, at 5 p.m., a week from Monday and sunsets 90 days after the governor terms the COVID-19 threat over in the state.

In addition to the emergency orders dealing with criminal matters, the Judicial Council approved the suspension of evictions for 60 days, and adopted an emergency rule to “stay all actions for judicial foreclosures on mortgages and deeds of trust” to protect homeowners.

“At a time when people are being urged to stay at home to protect public health and safety, unlawful detainers (evictions)…threaten to remove people from the very homes they have been instructed to remain in. (Evictions) are likely to explode in coming months…as a significant portion of the population faces severe economic losses due to the closing of businesses, loss of income, and inability to work due to illness or the need for childcare in light of stay-at-home orders—resulting in a surge of unlawful detainer filings and trials in the courts,” the Judicial Council said.

The Council suggested that the governor’s executive order wouldn’t be enough to protect people, so its emergency orders would “amend current court procedures throughout the pandemic to implement the goals of the executive order as well as protect litigants and court staff” by precluding courts from issuing summonses on unlawful detainer/eviction complaints.

“The economic hardships brought on by the COVID-19 pandemic mean that many homeowners will have difficulty making mortgage payments for the same reasons that tenants will have difficulties making rent payments,” said the Council in approving an emergency order that would stay court proceedings on judicial foreclosure “until 90 days after the state of emergency related to the COVID-19 pandemic is lifted.”

But, the biggest take away of the meeting was the no-bail decision – it essentially accomplishes much of what defense lawyers have been trying to do: Empty out local jails as much as possible to prevent COVID-19 from sickening and killing incarcerated, and jail personnel.

Currently, there are only a few inmates and a handful of correctional personnel that have tested positive for the virus.

But that could change fast, and that’s what the Judicial Council swiftly move against Monday.

It may be a relief for the Sacramento Public Defender Office, which has filed a motion to release about 1,700 inmates from the county jails. It was ignored by the Sacramento County Superior Court this past week. The pleading wanted older inmates and those with compromised immune systems released early. An appeals court is looking at it currently.

But now, the Judicial Council’s emergency order Monday set bail at $0 for most misdemeanor and lower-level felony offenses – it could, according to several Sacramento lawyers, kick thousands out of the Sacramento jail system, Yolo and other county facilities around the state.

Acknowledging it was a difficult call to balance “both Constitutions” with the “health and safety needs of their local community with the civil and constitutional rights and liberties of individuals and groups from our communities,” CA Supreme Court Chief Justice Tani G. Cantil-Sakauye, chair of the Judicial Council, defended the actions of the Council Monday.

“Today, as part of our ongoing collective effort to flatten the curve, stem the spread of the virus, and assume the responsibility delegated to us by Governor Newsom ‘with utmost care and judiciousness’ we seek to address the issues of the faces behind the cases, and those that support them in seeking relief, resolving disputes, or having their voice heard by the courts. All are ‘number one’ on our list,” she said.

“(T)o say that there is no playbook is a gross understatement of the situation. I’m confident we can preserve the rule of law and protect the rights of victims, the accused, litigants, families and children, and all who seek justice,” the chief justice added.

In a statement released by the Council:

“The Emergency Bail Schedule (will) set bail at $0 for misdemeanors and certain felonies, with exceptions for serious felonies under Penal Code section 1192.7(c) and violent felonies under Penal Code sections 667.5(c), and other offenses such as those involving domestic violence or stalking, driving under the influence offenses, and offenses requiring sex offender registration…the application of the statewide Emergency Bail Schedule to any accused currently held in county jail custody charged with an offense covered by the schedule.

“The rule would provide that each superior court’s current bail schedule would remain in effect for all offenses other than those addressed in the Emergency Bail Schedule and provide courts with authority to revise those remaining portions of their schedules, including setting bail for court-specific conduct enhancements and any status enhancements.

“Bail to be set at $0 for violations of misdemeanor probation, whether the arrest is made with or without a bench warrant. For violations of felony probation, parole, post release community supervision, or mandatory supervision, bail must be set in the same amount as bail for the underlying substantive charge of conviction under the Emergency Bail Schedule.”

Other emergency orders relating to the criminal court system that were approved Monday allow courts to require judicial proceedings and court operations be conducted remotely – as they began doing last week in Sacramento Superior Court. Those jailed could appear live via video streaming, or through their lawyers at pretrial criminal hearings.

If defendants refuse to do their court proceedings electronically, the cases would just be continued.

One Council member Monday complained with “why put our deputies at risk” if inmates insisted on coming to court in person. In response, she was told that the law enforcement “partners” had been silent about the issue.

“I don’t see a need for courts to override the defendant’s consent for a video hearing…we need to balance the right of the accused. But I’m not saying my position can’t change next week,” added the chief justice.

Other new rules would allow electronic depositions in civil cases – and those kind of cases would have extended filling deadlines.

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