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Judges Must Also Be Centered In Demands To Defund And Divest From Mass Criminalization

Calls to defund the police must also be accompanied with divesting power and discretion from judges.

This piece is a commentary, part of The Appeal’s collection of opinion and analysis.

As we collectively grieve George Floyd, Breonna Taylor, Tony McDade, Rayshard Brooks, and other Black people murdered by police, we cannot forget that, everyday, judges are making decisions that result in the degradation or loss of Black life. Decision makers within the criminal legal system are offering empty platitudes to quell protesters’ fury, while doing nothing to change the status quo. On June 11, the Supreme Court of California issued a statement on “equality and inclusion” that stated society “must recognize our unacceptable failings” and urged us to acknowledge that “in addition to overt bigotry, inattention and complacency have allowed tacit toleration of the intolerable.” Chief Justice Tani G. Cantil-Sakauye said she was “deeply disturbed by the tragic deaths of George Floyd and others, as well as the action and inaction that led to these deaths.”  It is confounding how the Chief Justice can be disturbed by the actions of law enforcement, but oblivious to the unacceptable failures of the Judicial Council of California, the policy making body of the courts that she leads, to prevent more tragic deaths. 

The Judicial Council’s actions speak louder than words. Before COVID-19, California’s bail amounts were 10 times the national average and more than 71,000 people were held pretrial inside California’s crowded cages as the outbreak spread. In April, the Judicial Council issued an Emergency Bail Schedule that set bail at $0 for people charged with misdemeanors and some felonies. The purpose of the emergency rule was to limit the spread of COVID-19 in jails and surrounding communities. Crime rates remained at historic lows throughout its implementation.

Judges may taut the Emergency Bail Schedule as an example of their responsiveness to the crisis. However the $0 bail policy proved recklessly incomplete because while it created opportunities for release for some, it excluded most people, leaving them trapped inside for months or even years simply because they cannot afford bail. The Judicial Council also failed to meaningfully enforce their own Emergency Bail Schedule. For example, the Los Angeles District Attorney and Public Defender received a list from the LA County Sheriff of approximately 2,100 people in jail who appeared to qualify for bail reduction and release. To date, the LA Superior Court has reported only releasing approximately 250 people. Throughout the duration of the Emergency Bail Schedule, judges were exploiting delays and loopholes that ultimately kept people in jails longer. As COVID-19 cases inside jails increased, judges continued  to use their discretion to set bail at astronomical amounts. 

Then on June 10, in a moment of policy whiplash, the Judicial Council announced that it had voted to rescind the Emergency Bail Schedule. Instead of fixing the already insufficient policy, the Judicial Council completely abdicated its leadership role in responding responsibly to COVID-19. Now, the chances of incarcerated people remaining exposed to this deadly virus depend on how judges will use their discretion county by county. To date, Governor Newsom has not lifted the state of emergency. Justice Marsha Slough, a Judicial Council member and chair of the Executive and Planning Committee, stated that the vote to rescind “reflects the current needs of our state, which has different health concerns and restrictions county-to-county based on the threat posed by COVID-19.” In reality, the threat of COVID-19 inside California’s facilities is threatening regardless of which county the person is incarcerated in.

Judges have tried to escape responsibility by claiming to have insufficient data on the impact of COVID-19 on conditions in jails. Rather than remaining indifferent, judges should be alarmed and motivated to act by the fact that local Sheriffs have refused to provide transparent information about the impact of COVID-19 on incarcerated peoples’ health. In fact, we know that people are ill and dying from COVID-19 in CA jails. In LA county, a family is grieving the death of a loved one who was held in Men’s Central Jail and died of COVID-19 soon after a judge refused to issue a temporary restraining order that would have mitigated exposure within the jail. At my organization Essie Justice Group, we knew facilities would bury the truth about our incarcerated loved ones’ health status. We launched the Lives on the Line survey to collect concrete data. Since COVID-19 hit, California Department of Corrections and Rehabilitation (CDCR) facilities have placed individuals on lockdown for at least 23 hours a day. LA County jails ran out of soap and toilet paper and the Sheriff falsely accused people of intentionally infecting themselves. People have scarce access to soap, disinfectant, and cleaning supplies. People who test positive for COVID-19 are given insufficient medical attention. San Quentin prison placed people in solitary confinement and called it quarantine. Getting out of California’s crowded jails is a matter of life and death. 

Inability to pay bail should not be a death sentence, but that is the practical consequence of cash bail for people like Wanda. We first met Wanda through our work with the National Bail Out collective to identify and bail out Black mothers. Wanda’s bail was set at a staggering $200,000; she was excluded from the Judicial Council’s Emergency Bail Schedule. If she were rich she would have been home with her family. Yet, Wanda stayed in jail for over 14 months without access to the proper treatment for her medical condition. Fortunately, through grassroots and community led efforts, we were able to raise the $200,000 to pay for her freedom. 

In early May, we also met Priscilla. Priscilla was forced to give birth while shackled to a gurney as two male deputies watched because a judge would only allow her to go home if she could come up with $500,000 and the local Sheriff would agree to supervise her electronic monitoring. The Sheriff refused. Displaying it was well within the judge’s power to do so all along, the judge finally granted release after Priscilla gave birth to her baby, who was underweight. As of now, she is with her child. However as soon as the judge determines that the baby has put on enough weight, Priscilla’s infant child will be taken from her and she will be forced to return to a facility with confirmed COVID-19 cases. Like Wanda, Priscilla was also left out of the Judicial Council’s $0 bail policy. By rescinding the Emergency Bail Schedule, the Judicial Council left even more people behind and inside jails for longer without a feasible option for release. The Judicial Council must issue an Emergency Bail Order that facilitates compulsory and expedited releases of everyone held pre-trial, especially pregnant women. 

Californians have a concrete opportunity to rein in judicial discretion and reimagine pretrial detention by rejecting SB10, California’s bail reform law that awaits voters’ approval in this November’s election. If approved, SB10 would remove cash bail and replace it with Risk Assessment Tools, which are algorithms that calculate the perceived “risk” that someone will be re-arrested or miss a future court date. These tools are proven to be inherently biased against low-income and Black and Brown people and give judges extended power to keep people in custody with no outlet for release. SB10 would increase the power of judges and probation departments, while effectively rolling back the due process that all of our communities are entitled to. Concerningly, the Judicial Council’s callous disregard of the threat of COVID-19 gives us a clear indication of how they would continue to use their discretion under SB10.

As we trace the history of policing to slave patrols and demand divestment from systems that harm Black people, we must also demand judicial accountability. Courtrooms are the new auction blocks; transactional sites where Black people confront the decision makers who place a dollar value on our lives and restrictions on our liberty. Thousands of incarcerated people have tested positive with COVID-19 statewide and over a dozen have died in California institutions. Now is the moment to hold judicial officers accountable. Calls to defund the police must also be accompanied with divesting power and discretion from judges.

Gina Clayton-Johnson is an attorney, activist, and the Founder & Executive Director of Essie Justice Group — a race, gender, and criminal justice advocacy organization of women with incarcerated loved ones. Essie is part of the Justice LA coalition, Movement for Black Lives, the National Bail Out collective, and recently launched the Lives On The Line Campaign in response to COVID-19.