A Review of COVID-19 Emergency Bail Schedule and Recent Los Angeles District Attorney Policy Changes Regarding Bail
In response to the COVID-19 public health emergency, the State of California promulgated an emergency bail schedule which reset the presumptive bail for most offenses to $0.
While the statewide bail schedule has since been repealed, many counties, including Los Angeles county, continued with their own $0 bail schedules in response to COVID.
As of this writing, the bail for all infractions, misdemeanors, and felonies is presumptively $0.
In our criminal justice system in California, bail money has to be posted with the court in order for an inmate to get released from jail.
The primary purpose to is to ensure a defendant will show up for their future court appearances.
Exceptions to the New Bail Rules
However, there are numerous exceptions to this general rule. There are several misdemeanors offenses that are not subject to the $0 presumptive bail, such as:
- contempt of court,
- domestic violence offenses,
- carrying of a concealed firearm,
- stalking, and
- driving under the influence.
Many felonies, particularly those involving allegations of violence, are likewise excepted.
To give readers a better understanding on posting bail, our Los Angeles criminal defense lawyers are providing a review below.
Factors Considered by Judge in Setting Bail
Judges retain their statutory and constitutional authority to set bail according to the individual facts of a specific case.
As was always the case, the factors which the judge setting bail will consider primarily relate to:
- public safety, and
- the likelihood of the defendant's flight, meaning the likelihood defendant will return to court if placed on pretrial release.
Nothing in the COVID emergency bail schedule limits the court's power to detain a defendant without bail.
There is also no limitations to set above-schedule bail based on a request from the prosecution.
This will particularly be the case for repeat offenders and those who are alleged to have violated probation or parole.
New Los Angeles District Attorney Policy Changes on Pretrial Release
In addition to the COVID-related changes to the bail schedule, recent Los Angeles County District Attorney's Office policy changes will likely change the pretrial release prospects for a vast swath of criminal defendants.
special directive 20-06
On December 7, 2020, newly-elected District Attorney George Gascon issued Special Directive 20-06 which directly addresses the question of pretrial release.
Keep in mind that a judge, not a prosecutor, ultimately makes the decision on whether to release a defendant pretrial and, if so, on what conditions.
Nevertheless, practical experience teaches that the setting of cash bail, particularly the setting of prohibitively high cash bail, is typically the result of a request from the prosecutor assigned to the case.
In the past, it was not uncommon for Deputy District Attorneys to request the schedule bail, or even a deviation to a higher cash bail amount, routinely despite a defendant's inability to pay.
presumptively request pretrial release for all defendants
Under the new special directive, however, the District Attorney's Office policy is to presumptively request pretrial release for all criminal defendants. The policy dictates that the policy shall be:
- a presumption of own recognizance release without conditions;
- meaning a defendant would simply be released on their promise to return to court, and;
- would not be subject to any sort of supervision or monitoring while the case is pending.
This is a massive benefit for criminal defendants and their families, especially in the case of low-income individuals who could not previously have afforded to fight their cases from out of custody.
Prosecutor Can Request Conditions of Release
As always, important exceptions apply. Where the public safety and the risk of the defendant's flight demand more supervision than a simple own recognizance release, the policy allows the prosecutor to request conditions of release tailored to the defendant's case.
The prosecutor must consider conditions, if any are to be requested:
- beginning with the least restrictive, which would be no conditions, and;
- moving toward the most restrictive, such as;
- electronic monitoring and home confinement.
At each stage, the prosecutor must thoroughly evaluate a condition and determine that it is inadequate to protect the public and ensure the defendant's return to court before moving on to the next least restrictive condition.
Pretrial Detention Request for Cash Bail
Pretrial detention, meaning in practice the request for cash bail to be set, can only be considered under the new policy where clear and convincing evidence shows a substantial likelihood that the defendant's release will result in great bodily harm to others or the defendant's flight.
In no case, however, is a prosecutor permitted to request cash bail if the defendant is charged:
- only with a misdemeanor,
- a non-serious felony, or
- a non-violent felony.
defendant's ability to pay
Even in these cases, however, the new bail policy mandates that the cash amount requested be aligned with the defendant's ability to pay.
As a final note, the new District Attorney special directives create a presumption of release without bail for any defendants who are in high risk groups for COVID-19 exposure.
Taken together, both the county emergency bail schedule and the new District Attorney policy changes will likely result in many more criminal defendants being released pretrial without having to post cash bail.
As noted above, however, the judge is the ultimate decision maker on the issue of release and the setting of bail.
Criminal Defense Lawyers in Los Angeles
If you, or someone you know, is charged with a crime and requires counsel regarding the new bail policies, contact our experienced team of Los Angeles criminal defense attorneys for an initial consultation.
We have a track record of success defending clients against any type of misdemeanor or felony crime in all LA County Courtrooms.
Eisner Gorin LLP is a top ranked criminal defense law firm representing people throughout Southern California, including the greater Los Angeles area, Orange County, Ventura County, Long Beach, Beverly Hills, Santa Monica, Riverside, and San Bernardino.
Our office is located at 1999 Avenue of the Stars, 11th Fl., Los Angeles, CA 90067.
Our main office is located in the San Fernando Valley at 14401 Sylvan St #112 Van Nuys, CA 91401.
Contact our office for a consultation at (310) 328-3776.