LOS ANGELES (CN) — A protracted hearing over whether or not a judge should bar Los Angeles from using pre-arraignment cash bail plodded on this week with live testimony.
In November, a pair of nonprofit public interest law firms filed the lawsuit at issue on behalf of six recently jailed people who couldn't afford to pay their initial preset bail. That temporary bail is made according to the county's "bail schedule," a set amount of cash bail an accused must pay in order to be released, before a judge sets a different bail amount at a hearing — and even before the accused is given a lawyer.
The plaintiffs in the case say the system discriminates against people who can’t afford to pay the bail. They point to a decision by the California Supreme Court, which said judges must take an arrestee’s ability to pay into account when setting bail. They have asked Superior Court Judge Lawrence Riff to issue a preliminary injunction to effectively revert the city and county of Los Angeles back to the system they adopted during the first two years of the Covid pandemic, when most arrestees — though not those accused of serious crimes, like murder or rape — were released on their own recognizance, pending arraignment. That controversial system has been was known as "zero bail" or "zero cash bail."
The hearing has continued on and off for more than three weeks, and shows no sign of ending. Judge Riff has encouraged both parties to call live witnesses and peppered them with questions.
One curious feature of the marathon hearing — one of many — is the apparent reluctance of attorneys for the city and county to offer a full-throated defense of pre-arraignment cash bail. That may be a reflection of the broad spectrum of public officials they represent. Most elected officials in the region are liberal Democrats who support criminal justice reform. Most law enforcement officials, on the other hand, oppose zero cash bail.
The judge, meanwhile, has all but begged for one of the parties to speak for the "broader public interest," which he has said must be considered before making a decision that would surely have an enormous impact on public policy. He has pressed sides for evidence as to whether or not zero cash bail affects the rate at which arrestees show up for arraignment, or, more importantly, whether it affects recidivism rates.
That was a topic of much debate during the first few months of Covid. Local news media was rife with stories of criminals released, only to commit more crimes the next day — or sooner. One notorious headline read: "Glendora police arrest, release man 3 times in 1 day under new CA zero-bail policy."
At the outset of the hearing, the city and county’s attorneys argued that the plaintiffs were suing the wrong polity. All the city and county wanted to do, they said, was follow the law, which was made by the state of California. They successfully persuaded the judge to add the state of California as a defendant in the case, but they also remain defendants in the case.
Since then, their legal strategy has shifted, somewhat. On Wednesday, the County put two low-level Sheriff’s department officials on the stand, one a sergeant, the other a deputy. Both testified that they had no way to judge the impacts of zero bail during Covid, blaming the Sheriff Department's computer system, which wasn't set up for such data gathering.
On Friday, the city offered up the testimony of a principal detention officer, Eboni Bryant, a supervisor, who said that the Covid-era emergency bail schedule did result in increased recidivism, though she lacked the data to back that claim up.
"We saw the same offenders coming in again the same week, sometime the same day," Bryant said. She noted that in June 2020, the system was amended to set a cash bail for those arrested after their initial release. After that, she said, "they weren’t coming in as frequently."
In the afternoon, the plaintiffs called a paid expert witness, Michael Jones, a consultant who works with cities and counties to improve their "pre-trial systems." Jones argued that cash bail was not only ineffective, but counterproductive.
"It’s effectively criminogenic," Jones said "It causes the thing we’re seeking to avoid."
"Researchers have found that the longer you’re in jail, the more your life gets disrupted," he added.
That is to say, people that are jailed even for a few days can lose their jobs, lose their homes, or stop taking their medication, all of which can lead to increased criminal behavior.
"Detention and jail is not conductive to longer-term public safety," Jones said. He pointed to a slew of studies that argued that zero cash bail systems have no effect on recidivism or an arrestee's likelihood to appear for arraignment. One study found "no evidence that financial collateral has a deterrent effect on failure-to-appear or pretrial crime.”
The hearing is set to continue on April 24 after a week-long break. One big question is whether or not LAPD Police Chief Michael Moore will take the stand. Moore had previously offered to testify but had initially not been scheduled to do so. On Friday, the city's lawyer said Moore intended testify after all, which came as some surprise to the court. The plaintiffs objected, arguing that it wasn't clear whether the chief would be testifying as an expert on LAPD crime statistics or as a layman. They also said the inclusion of Moore would further delay the already sprawling proceedings.
"You’re not the only one concerned about delay," the judge replied. "I’m concerned about that too." But he then took aim at the plaintiff's own proposed injunction, which is to end pre-arraignment cash bail and to give both parties 60 days to work out a new system.
"I must tell you, I’m very tepid about that idea," Judge Riff told the plaintiffs' lawyers. "I don't know what happens on day 61 if you haven’t figured something out. I’m far more likely to impose a preliminary injunction that is pretty specific and administrable from the get go."
In other words, the hearing might be stretching on and on, but at least there wouldn't be a 60-day waiting period tacked on at the end. At least, probably not. "I’ll never say never," he said.
Riff said he was inclined to allow Moore to testify, suggesting that the chief might be in a position to speak for the public interest, but held off on making a decision.
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