Judicial Council should make changes to ‘$0 Bail’ policy to ensure justice for all

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Human trafficking, child and elder abuse, selling drugs while armed, parole and probation violations. These are just a few “low-level” crimes subject to California’s new “$0 Bail” policy, a policy that releases offenders immediately back into the community with no strings attached – no risk assessment, no services, no supervision and no guarantees.

In April, the California Judicial Council, the rule-making arm of the California courts, enacted emergency rules of operation during the COVID-19 crisis which included a mandatory bail policy called “the Emergency Bail Schedule.”  

Bail is guaranteed under the California Constitution and the superior court in each county sets its own bail schedule.  The Judicial Council’s action required most misdemeanor and most felony suspects be released immediately from custody without bail with no prohibitions or required check-ins with a probation or parole officer placed on these individuals.  It is simply a “catch and release” policy.  

While restrictions exist on who gets released under “$0 Bail,” the list of “low-level” crimes resulting in immediate release into the community is long and alarming.  The list includes many gun crimes, crimes against the person, and property crimes. With some exceptions, those who are on probation or parole can violate their terms or commit new offenses and still be released on $0 bail.  

As a society we can never lose sight of the fact that nearly every crime, even those dubbed “low level,” has a victim.  Simply dismissing a crime as “low level” diminishes the very real and life altering impact that these crimes have on victims’ lives.  

Another important issue not fully considered by this policy is that some individuals have mental health and/or addiction issues that drive their criminal behavior.  When these individuals are in custody their needs can be assessed, treatment can begin, and they can be transferred to treatment facilities.   

Immediate release precludes us from connecting these individuals with the services necessary to address their issues and prevent recurring criminal conduct.  This does nothing to protect our community, potential victims or the offenders themselves.  

According to the Judicial Council, judges can deviate from the bail schedule and raise bail or keep an offender in custody if they find “good cause that the defendant poses a threat to public safety.”  Police can also make such a request, but it is solely within a judge’s discretion to grant it.

The flaw in this approach is that many of these individuals are getting released before they appear before a judge, and the police too often lack the information and resources necessary to request a timely deviation from the bail schedule.  

Putting the onus on law enforcement officers takes them off the streets and hinders their ability to respond to calls for service which, in these turbulent times, does not benefit the community.  The biggest concern, however, is that if an individual is summarily released on $0 bail it is then too late for either a prosecutor or the police to get before a judge to request a deviation from the bail schedule or to have a bail enhancement granted.  

The first and most important responsibility for any government is to provide for the safety and security of those it represents.  In these extraordinary times when circumstances require emergency measures, we cannot lose sight of our fundamental duty to ensure safety and justice for those we serve.  It should always be the North Star for public safety.

The $0 bail policy is hampering the ability of those in public safety to honor their sacred commitment to victims and to the security of the communities they serve.  We recognize that the policy was implemented in good faith and in response to a very real crisis.  However, it is manifestly apparent that the policy has inadequacies and we urge the Judicial Council to consult with prosecutors and other justice partners to make the changes necessary to ensure justice for all.     

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Melinda Aiello is an assistant chief deputy district attorney at the Yolo County District Attorney’s Office, Melinda.Aiello@yolocounty.org. She wrote this commentary for CalMatters.