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L.A. Ended a Zero-Bail COVID Rule, and Now the Jail Population is Growing

In June, a judge ended an emergency order to slow the spread of COVID-19 in LA’s jails, enraging civil-rights advocates.

This photo shows the entrance of the Los Angeles County Superior Court's Stanley Mosk Courthouse
Visitor7 via Wikimedia Commons

On June 14, as a new subvariant of the COVID-19 virus began to spread rapidly around the country, the Los Angeles County Superior Court announced a plan to rescind a zero-bail policy designed to ease overcrowding in jails during the pandemic.

The so-called Emergency Bail Schedule (EBS) policy—which was first inspired by a set of emergency rules enacted by the California Judicial Council in the spring of 2020—set bail to zero for a number of nonviolent misdemeanors in order to release the county’s lowest-level offenders and lessen jail crowding overall. But now, despite the fact that the spread of COVID-19 continues, the Los Angeles County Superior Court believes it’s time to begin charging people to exit jail once more.

“The EBS was not conceived as a part of California’s efforts at zero cash bail reform,” the court said in a press release. “They are completely different. Zero-dollar bail initiatives seek, as a matter of public policy, to permanently eliminate cash bail as part of bail reform. The Court’s EBS did not eliminate cash bail and was intended to be a temporary response to the pandemic-related dangers inherent in pretrial incarceration.”

The move has enraged civil-rights activists, who say the zero-bail policy demonstrated that the county should cancel cash bail for good. Even though many of those advocates believe that the EBS did not go nearly far enough to actually solve the problem of over-incarceration in Los Angeles—or the mass spread of COVID-19 in jails—they readily admit that it was a step in the right direction. Meredith Gallen, a Los Angeles County public defender and member of the public defender’s Union Local 148, told The Appeal that she wished the zero-bail order had led to permanent, systemic change in the county jail system.

“This [was] an opportunity to set a precedent,” she lamented. “For people who are engaged in progressive reform and [are] concerned about cash bail … [we] viewed this as an opportunity to set a precedent that would last for longer and we could learn from.”

In theory, cash bail—which is returned to whoever pays the bail once litigation is complete—is not a punishment itself and is designed to guarantee that a person charged with a crime returns to court. In practice, however, even small bail amounts trap poor people in the jail system, while those with access to money often walk free no matter the severity of their crimes. In California, where the median bail amount is more than five times the national median, cash bail keeps thousands of indigent people in detention, even though they have yet to be convicted of a crime.

When the EBS was first enacted, LA County reduced its jail population by almost 30 percent—from 17,000 to about 12,000, its lowest number in decades. Since the policy was terminated on June 30, when there were 13,232 people in the jail system, the number has increased. According to the county sheriff’s website, the total jail population was 14,471 as of September 6. According to the county’s website, 144,592 people had tested positive for COVID-19 in the county jail system as of that same date. Twenty-three people have died of the disease.

Nearly half of those held in LA’s jails are pretrial, meaning they are waiting behind bars because they cannot pay their bail. In a report published in 2017, Human Rights Watch calculated that every person in pretrial detention costs taxpayers an average of $114 per day. The same report described some of the severe consequences for people who have to wait behind bars for months, or even years, before their case is resolved. That list includes losing their housing, getting fired, having their children sent into foster care, and going into debt. While in confinement, people are also often unable to pay child support or take their medications regularly, and they are susceptible to violence by other incarcerated people and by guards.

Those held in pretrial detention also miss out on the critical opportunity to properly prepare for trial. Studies have shown that people who are held in jail before their trials are more likely to be convicted than those who are not detained pretrial. According to a Columbia Law School finding, there is “significant evidence of a correlation between pretrial detention and both conviction and recidivism.”

Proponents of cash-bail argue that zero-bail policies let people who could be a danger to society back onto the streets. But Ivette Alé-Ferlito, an organizer and campaign coordinator for the JusticeLA Coalition, a grassroots organization dedicated to ending mass incarceration in Los Angeles, says that’s simply not accurate.

“The bail schedule isn’t determined by the facts of the case,” they said. “Most judges aren’t looking at facts of a case at arraignment…. They’re just running risk assessments without strengths or needs.”

Instead of conducting thorough hearings that actually assess an individual’s potential danger, Alé-Ferlito says, judges are using pieces of information “founded with biased data,” such as employment status, education level, age, and arrest records, to determine whether a person might pose a risk if released back into society.

John Raphling, a senior researcher on criminal justice at Human Rights Watch, argues that there’s no relationship at all between the current bail system and public safety. “Pretrial detention isn’t being used for public safety,” he said. “It’s being used to get people to plead guilty.” Raphling explained that indigent people feel pressured to accept guilty pleas as a means of resolving their case and getting out of jail as soon as possible.

For Raphling, the real risk is that the general public does not recognize that the world on the “inside” and the rest of society are actually interconnected.

“They cycle in and out,” he says, in reference to the many people going in and out of custody all the time. “They’re going to get COVID and bring it home to their families. They’re going to get it at home and bring it into the jail.” He added: “It’s not just the people in jail who are getting sick. It’s not.”

Gallen, with the public defender’s office, said that the spread of COVID inside jails has everything to do with the notorious inefficiency that already plagues the judiciary. When her clients have COVID and are being held in isolation, she said, they are unable to video conference or talk on the phone with their attorneys, let alone visit in person. “That obviously contributes to [the] backlog,” she notes.

The county could vote to make a zero-bail law permanent, but few, if any, county politicians have floated plans to institute such a policy. In the meantime, advocates wish the courts were making better use of the mechanisms for release that are already in place. One example is the Office of Diversion and Reentry (ODR), which directs people with mental illnesses or substance-use disorders away from the criminal system and into rehabilitative programs. A 2019 study by the RAND Corporation found that 86 percent of the people surveyed who’d gone through ODR’s programs had no new felony convictions after 12 months.

“We all believe in ‘innocent until proven guilty,’ but for certain communities, those privileges are not extended to them,” Alé-Fertito said. “And it isn’t a privilege, it’s a right.”