California Prosecutors Are Using Loopholes To Keep People In Jail During COVID-19

Last month, the Judicial Council of California issued a statewide rule that reduced bail for most misdemeanors and low-level felonies to $0 during the coronavirus pandemic. The emergency bail schedule was an acknowledgment by the chief justice of the Supreme Court of California that people in jails and prisons have a significantly higher risk of being exposed to COVID-19 — and that individuals accused of many lesser crimes shouldn’t have to risk contracting a potentially fatal disease while they await their court date.

But since the rule went into effect, prosecutors throughout the state have exploited loopholes in the policy or flat-out refused to comply with it. As a result, thousands of people in California who are eligible for pretrial release under the state’s zero bail order have wound up stuck in jail.

The policy shift has also been challenged by a fear-mongering campaign in which some law enforcement officials have pushed misleading information to perpetuate the false narrative that the $0 bail policy is putting communities in danger.

Last month, the Los Angeles Times credulously quoted Los Angeles Police Chief Michel Moore describing a rise in repeat offenders, supposedly due to criminals feeling emboldened because they know they won’t sit behind bars until after they’re convicted of a crime. The Times story featured a man who had been arrested four times in three weeks on suspicion of grand theft auto — a crime, the Times story seemed to suggest, that warrants being subjected to COVID-19 exposure in jail. In the ninth paragraph of the story, the Times acknowledged that people with multiple arrests now account for 5% of all arrests — an increase of just one percentage point from the same period last year.

When Stealing Groceries Is Treated As Looting

The zero bail policy excludes 13 offenses, mostly violent crimes. People accused of committing any of these crimes can be assigned bail under the regular, pre-coronavirus guidelines.

One of the exempted offenses is felony looting, which is legally defined as theft or burglary during a state of emergency. Looting is generally understood to be different from other forms of stealing in that it typically involves people pillaging shuttered businesses. But several district attorneys in California have directed their offices to file looting charges in cases of ordinary theft and burglary as a way to ensure that the suspect is sent to jail. Under this guidance, someone who steals from a store that is still open during the pandemic — even during regular business hours — could be charged with looting.

In Los Angeles County, home to 10 million people, a deputy district attorney detailed the looting loophole to a colleague in an April 14 email obtained by HuffPost. “For fraud/theft cases where the defendant is currently in custody, we have a couple arguments to obtain appropriate amount of bail,” Deputy District Attorney Michael Fern wrote. “The emergency bail schedule specifically exempts felony violations of PC 463 (looting) from ‘zero bail,’” he noted. In cases of grand theft, where the value of the stolen goods is more than $950, prosecutors can file felony looting charges, Fern continued.

According to Fern, it would be preferable — but not necessary — for prosecutors to be able to prove that the incident had any of the typical characteristics of looting. “A violation of PC 463 does not require any proof of a nexus between the theft and the emergency,” he wrote. “However, as a policy matter we would probably want to be able to articulate some connection, such as how the theft was aided by decreased vigilance due to depleted law enforcement resources, business closures, or sheltering-in-place.”

The Los Angeles District Attorney’s office declined to comment.

Other California jurisdictions have openly boasted about their efforts to use looting charges to jail people who would not otherwise face pretrial detention. “Looting charges have the effect of preventing a person arrested for grand theft or burglary from being immediately released by the jail upon arrest,” Kern County District Attorney spokesman Joseph Kinsel told The Bakersfield Californian. A Fresno County assistant district attorney, Steve Wright, told the Fresno Bee that he would look into looting charges against a man accused of stealing thousands of dollars worth of baby formula, bottled water, cosmetics, and perishable food. Yolo County’s district attorney put out a press release about a man who was charged with looting for allegedly stealing cars.

“It seems a little backwards because the chief justice created zero bail because of the state of emergency. And yet, looting is simply theft during a state of emergency and it’s being used to get around the remedy the chief justice put in place to keep people out of custody so they don’t get sick,” Yolo County Public Defender Tracie Olson said in an interview.

Stanislaus County District Attorney Birgit Fladager announced in a press release last month that “anyone who commits a crime of Burglary in the Second Degree, Grand Theft or Petty Theft, in our county, during the State of Emergency could be charged with Looting.” The next day, a 32-year-old woman who took $400 worth of groceries from a Save Mart without paying was charged with felony looting. Prosecutors later agreed to drop the charge to misdemeanor looting, which qualifies for zero bail. But by that point, the woman had already spent several days in jail, where she was at increased risk of contracting COVID-19.

Prosecutors who charge theft cases as looting are “significantly increasing the likelihood of an outbreak for no other reason than their political desire to circumvent the mandatory bail schedule,” said Yoel Haile of the Northern California branch of the American Civil Liberties Union.

Stanislaus County Public Defender Laura Arnold told HuffPost that despite Fladager’s press release, she has not seen the district attorney’s office inappropriately charge defendants with felony looting since that case last month. Asked about the dozens of individuals currently in the county’s jail system facing looting charges, Arnold said that they could be facing other charges exempt from the zero bail order or that arresting officers may have taken people into custody by mistake before the DA had a chance to weigh in.

If law enforcement officials are jailing people accused of theft, Haile said, they are doing so in accordance with guidance provided by the district attorney. Fladager’s office did not respond to a request for comment.

A ‘Mandatory’ Policy Interpreted As ‘Discretionary’

The Judicial Council’s zero bail order includes a section titled “Mandatory application,” which instructs courts to apply the emergency bail schedule “to every accused person arrested and in pretrial custody” by April 13 at 5 p.m. Despite the seemingly clear language, prosecutors have argued that complying with the “mandatory” zero bail order is discretionary.

By the time the Judicial Council’s order went into effect last month, the district attorney’s office in the Central Valley’s Tulare County had already filed more than 100 motions opposing the reduction of bail to $0.

In San Diego, prosecutors sought higher bail against 186 people in custody who were eligible for zero bail when the order went into effect, Deputy Public Defender Whitney Antrim told HuffPost.

The district attorney’s office and the sheriff’s department for San Diego County “have taken several proactive steps to address the threat of the coronavirus to individuals being held in local jails, including putting policies in place that promote the release of individuals arrested for low-level, non-violent crimes who normally would have been released if the court was open or can’t afford to post bail,” Tanya Sierra, a spokeswoman for the DA’s office, wrote in an email on Tuesday. “The jail population on any given day in San Diego County is generally close to 5,500. Today it’s about 3,750,” Sierra added.

In Los Angeles County, where District Attorney Jackie Lacey has publicly praised the zero bail policy, her office has slow-rolled efforts to release eligible defendants from jail, according to a lawyer in the Los Angeles Public Defender’s office. About a month ago, the LA Sheriff’s Department created a spreadsheet of more than 2,000 people in jail who were potentially eligible for release under the zero bail order. The court asked prosecutors and defense attorneys to review each case and determine who qualified for release. As of last week, approximately 500 people on the list have been let out, said the lawyer in the public defender’s office, who requested anonymity to discuss ongoing negotiations. About 300 got out after the DA’s office agreed to their release — the rest were freed through plea bargains or individual bail hearings.

Claiming Fears For Public Safety

Several prosecutors have pointed to provisions in California’s state Constitution that allow a defendant to be held in pretrial detention without bail in cases where their release would endanger public safety.

“We still have the constitutional authority to request the court for an upward deviation or deny bail altogether, as appropriate,” Fern, the deputy district attorney in Los Angeles, wrote in his April 14 email. Nothing in the zero bail order “restricts the ability of the court to deny bail as authorized by … the California Constitution,” he noted.

Invoking public safety to deny bail is a somewhat rare tactic usually reserved for serious violent offenses. But some prosecutors are now using it as a work-around to the pandemic policy.

Some of the same prosecutors who are currently claiming the authority to deviate from the zero bail schedule are on record acknowledging that the Judicial Council’s order does not allow judges or prosecutors to decide when $0 bail is appropriate. Days before the emergency rule went into effect, San Diego County District Attorney Summer Stephan wrote a letter to Chief Justice Tani Cantil-Sakauye asking her to amend it to include a mechanism “for judicial review in cases that present a threat to public safety.”

“Release decisions should be made thoughtfully after consideration of many factors, including criminal history and current level of dangerousness, and not solely based on the present charges,” Stephan wrote. “By setting the scheduled bail for most felony offenses at zero, our ability and opportunity to add release conditions has been curtailed, and our ability to protect the public has been taken from us,” Stephan continued.

The Judicial Council has not, however, amended the rule as she requested.

After HuffPost reported on Los Angeles prosecutors’ efforts to seek pre-coronavirus bail levels in cases covered by the Judicial Council’s order, Chief Deputy District Attorney Joseph Esposito sent an internal memo with the subject line: “EMERGENCY BAIL SCHEDULE — ZERO BAIL IS NOT DISCRETIONARY.” It is the DA office’s position that “courts do not have discretion to set bail other than $0 for offenses that are not found in the 13 listed exceptions,” Esposito wrote.

Courts in California are now considering whether it is mandatory to grant $0 bail to every individual with qualifying charges. A San Diego appeals court rejected a challenge from the public defender’s office that alleged the county’s Superior Court had violated the Judicial Council’s order by allowing the district attorney to argue for higher bail amounts in cases eligible for $0 bail. The public defender’s office has asked the state Supreme Court to review the ruling.